CloudLinux OS Shared/CloudLinux OS Shared PRO/CloudLinux OS Solo/CloudLinux OS Admin LICENSE AGREEMENT

READ THIS LICENSE AGREEMENT BEFORE INSTALLING THESE PROGRAMS. THIS LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU, AS EITHER AN INDIVIDUAL OR AN ENTITY, AND CLOUD LINUX INC. (“CLOUD LINUX”) GOVERNING YOUR USE OF ANY PROGRAMS DOWNLOADED, INSTALLED, OR USED BY YOU (THE “PROGRAMS”). REFERENCES TO “YOU” HEREIN REFER TO BOTH YOU, THE INDIVIDUAL END USER, AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS LICENSE AGREEMENT. CLOUD LINUX IS UNWILLING TO LICENSE THE PROGRAMS EXCEPT ON THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. THE ACT OF DOWNLOADING, INSTALLING, OR USING THE PROGRAMS SHALL CONSTITUTE AN ACCEPTANCE BY YOU OF THE TERMS OF THIS LICENSE AGREEMENT, INCLUDING THE DATA PROTECTION ADDENDUM WITH ALL ANNEXES AND APPENDICES (“DPA”) ATTACHED AS SCHEDULE A, WHICH IS INTEGRATED AND MADE A PART OF THIS LICENSE AGREEMENT. IF YOU DO NOT WISH TO AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, PROMPTLY EXIT THE INSTALLATION NOW AND REMOVE IT FROM YOUR SYSTEM.

THIS LICENSE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF CLOUD LINUX’S OBLIGATIONS AND RESPONSIBILITIES TO YOU AS LICENSEE, AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF CLOUD LINUX RELATING TO THE SUBJECT.

 

1. GRANT OF LICENSE.

Cloud Linux hereby grants to you, and you accept, a limited, nonexclusive license to use the Programs in machine-readable, object code form only, and the user manuals accompanying the Programs (the “Documentation”), only as authorized in this License Agreement. For purposes of this License Agreement, the “Programs” include any updates, enhancements, modifications, revisions, or additions to the Programs made by Cloud Linux and made available to end-users. Notwithstanding the foregoing, Cloud Linux shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Programs.

The authorized use of the Programs is strictly limited to running the Programs as a security suite for Linux web servers. In no event may you use the Programs for any other purpose, including, but not limited to, using the Programs to create or enhance competing software or services.

You may use one copy of the Programs only on systems, including servers, work stations, virtual machines, blades, nodes, or disk partitions for which you have purchased Subscription Services from Cloud Linux or its resellers. For purposes of this License Agreement, “use” of the Programs means loading the Programs into the temporary or permanent memory of a computer. Installation of the Programs on a network server solely for distribution to other computers is not “use” of the Programs, and is permitted, as long as you have purchased Subscription Services for the systems being accessed by the Programs.

Your installation or use of the Programs grants Cloud Linux limited access to your system information, programs, and applications for the purpose of security analysis, diagnostic, performance analysis, reporting, and collecting performance metrics. Such access and information collected include reviewing installed packages and applications, the names, sizes, and attributes of files, the server or system uptime, load, and running processes, the server ID, metadata of HTTP(S) requests, server internal/external IP, the hostnames, usernames, domains, SQL queries, metadata of HTTP requests, PHP stack traces, executed functions data inside PHP requests, external requests metadata (such as request URLs, data, headers, and response data, etc.), CMS plugins data, server performance data, and user performance data. Web performance metrics are collected through the use of tracking JS and PHP code that is added when the Program is enabled. 

You acknowledge and agree that, should You enable these Programs on behalf of an end user in Your capacity as a server administrator, You are thereby affirming the acceptance of the License Agreement on the end user’s behalf. Further, You are obligated to present the License Agreement to the end user and secure their acceptance prior to enabling the Program.

As a condition of the license granted to You pursuant to this License Agreement, You shall pay Cloud Linux the amount(s) of all applicable license fees. You shall, in addition to the license fees, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this License Agreement. You shall reimburse CloudLinux for the amount of any such taxes or duties paid or incurred directly by CloudLinux as a result of this transaction, and you agree that CloudLinux may charge any such reimbursable taxes to the payment instrument you used for Your initial payment. 

 

2. PROTECTION OF PROPRIETARY RIGHTS; CONFIDENTIALITY.

You acknowledge that the Programs and each of their components are owned by Cloud Linux and others, and are protected under copyright law and other laws as applicable. Title to the Programs, or to any copy, modification, or merged portion thereof, shall remain with their respective owners, subject to the applicable license. You may commercially redistribute the Programs only if, you have entered into a separate agreement with Cloud Linux authorizing such commercial redistribution or Cloud Linux has otherwise granted you permission, in writing.

You agree not to remove any confidential or proprietary legends from the Programs.

You acknowledge that, in the event of your breach of any of the provisions of this Section 2, Cloud Linux will not have an adequate remedy in money or damages. Cloud Linux shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Cloud Linux’s right to obtain injunctive relief shall not limit its right to seek further remedies. This Section 2 shall survive termination for any reason.

Your obligations hereunder shall remain in effect for as long as you continue to possess or use the Programs, or any proprietary interests therein.

You further agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Programs, (b) copy or use the Programs for any purpose other than as permitted in this License Agreement, (c) remove or alter any trademark, logo, copyright or, patent marking(s), other proprietary notices, legends, symbols or labels in the Programs, or (d) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Programs, including, but not limited to, its license keys, to the fullest extent of the law.

All Programs are and remain the confidential information of, and a trade secret of, Cloud Linux.  The Programs does not include any rights to the underlying source code of the Programs, but only a right to use the object/binary code as set forth and restricted herein. You shall not rent, sell, lease, license, sublicense, assign, transfer, publish, disclose, distribute, display, or transcribe in any fashion any of the Programs to others or for any use other than as provided by this EULA, and any such attempted rental, selling, leasing, licensing, sublicensing, assignment, transfer, publishing, disclosure, distribution, display or transcription shall be null and void.

“Confidential Information” shall mean the Programs, any intellectual property of Cloud Linux or any other information that characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; or (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this License Agreement, provided, however, that any source code or trade secrets you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Cloud Linux. You shall not use any Confidential Information other than in the as expressly required to use the Programs in accordance with its standard use and in accordance with all Product Information. You are required to notify Cloud Linux in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this License Agreement, and to cooperate with Cloud Linux in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Cloud Linux prior to such disclosure to allow Cloud Linux an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Cloud Linux in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. 

 

3. LIMITED WARRANTY; EXCLUSIVE REMEDIES.

Limited Warranty: Cloud Linux warrants that (i) the media on which the Programs are furnished will be free from defects in materials and manufacture under normal use of a period of 30 days from the date of delivery to you; and (ii) Cloud Linux is the owner or authorized licensee of the Programs, or has the rights to license the Programs to you.

No person other than Cloud Linux, in writing, is authorized to make any representation or warranty to you regarding the Programs.

Exclusive Remedy: In the event of a breach of the limited warranty above, your exclusive remedy relative to the Programs shall be for Cloud Linux, at Cloud Linux’s option, to either: (i) replace the Programs that does not meet the limited warranty; or (ii) refund to you the Programs license fees (and no other fees) paid by you, during the 12 month period immediately preceding the breach of the limited warranty, for the Programs which fails to comply with the limited warranties.

4. DISCLAIMER; LIMITATION ON LIABILITY

Disclaimer: THE LIMITED WARRANTY ABOVE IS THE SOLE WARRANTY MADE BY CLOUD LINUX. CLOUD LINUX MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY CLOUD LINUX.

Limitation on Consequential Damages: IN NO EVENT SHALL CLOUD LINUX BE LIABLE TO YOU, AS LICENSEE, OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR SIMILAR LOSSES) EVEN IF CLOUD LINUX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUD LINUX SHALL HAVE NO LIABILITY OF ANY KIND RELATED TO YOUR DATA, INCLUDING, BUT NOT LIMITED TO, THE LOSS OR DAMAGE THEREOF.

Limitation on Liability: THE CUMULATIVE LIABILITY OF CLOUD LINUX TO YOU FOR ALL CLAIMS RELATED TO THE PROGRAMS AND THIS LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES (AND NO OTHER FEES) PAID TO CLOUD LINUX FOR THE PROGRAMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO THE CLAIM.

All limitations on liability, damages and claims are intended to apply without regard to whether other provisions of this License Agreement have been breached or have proven ineffective.

5. TERMINATION.

The license granted herein is effective until terminated. The license will automatically terminate, without notice, if you fail to comply with any provision of this License Agreement. Upon termination of this License Agreement, all rights granted to you pursuant to this License Agreement will terminate and revert to Cloud Linux. This license may be terminated at any time, for any reason, by Cloud Linux. Cloud Linux’s maximum liability for any such termination is to refund to you any prepaid fees.

6. PERSONAL INFORMATION CONTROL.

You agree to comply with all applicable laws, regulations, rulings and orders of the EU, US and other countries (including but not limited to the EU’s GDPR) in which you have operations relating to the protection, use, and distribution of personal information of your users or visitors on any devices which have the Program installed or stored.  Further, you shall indemnify Cloud Linux for any and all claims resulting from your violation of any such laws, regulations, rulings, or orders.

7. EXPORT CONTROL.

You agree to comply with all applicable laws, regulations, rulings and executive orders of the United States relating to the exportation or importation of any copies of the Programs (including but not limited to the export and destination control regulations of the Commerce and Treasury Department) and with all applicable foreign laws relating to the use, importation, licensing or distribution of copies of the Programs.

You acknowledge that Cloud Linux is subject to economic sanctions laws (“Economic Sanctions Laws”), including but not limited to those enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the European Union, and the United Kingdom. Accordingly, You shall comply with all Economic Sanctions Laws, including, but not limited to, those of the United States, the European Union, and the United Kingdom. You shall not provide access to the Cloud Linux Products to any individuals identified on OFAC’s list of Specially Designated Nationals (“SDN List”), the UK’s HM Treasury’s Consolidated List of Sanctions Targets, or the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions (collectively “Sanctioned Parties”). You shall not take any action which would place Cloud Linux in a position of non-compliance with any such Economic Sanctions Laws. Furthermore, You represent and warrants that (i) you have not in the past been, and will not be in the future, be connected with any Sanctioned Parties, (ii) shall provide such information regarding any individual or entity which you do business within any location covered by Economic Sanction Laws upon request of Cloud Linux, and (iii) shall promptly advise Cloud Linux of any activities which increases the risk of your’s non-compliance with this Section 7 or Cloud Linux’ compliance with Economic Sanctions Laws.

You agree to indemnify and hold Cloud Linux harmless from any loss, damages, liability or expenses incurred by Cloud Linux as a result of your failure to comply with any export regulations or restrictions or otherwise fails to comply with this Section 7.

 

8. GENERAL.

This License Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the United States, without regard to any conflict of laws provisions. The rights and obligations of the parties to this License Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.

No modification of this License Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought; or in the event of Cloud Linux updating this License Agreement; you agree to the modified terms through use of a click through process.

Any notices required or permitted under this License Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed.

In the event that any term of this License Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term shall be null and void and shall be deemed severed from this License Agreement, and all the remaining terms of this License Agreement shall remain in full force and effect.

 

 

SCHEDULE A

DATA PROCESSING ADDENDUM

(Version April 2023)

Need a signed copy? Click here.

This Data Processing Addendum (“DPA”), forms part of the CloudLinux OS License Agreement (available at https://www.cloudlinux.com/cloudlinuxos-eula/), or other written or electronic agreement, by and between CloudLinux, Inc. (“CloudLinux”) and the customer of CloudLinux (“Customer”) for certain security services (collectively, the “Service”) provided by CloudLinux (the “Main Agreement”). All capitalized terms not defined herein shall have the meanings set forth in the Main Agreement. Each of Customer and CloudLinux may be referred to herein as a “party” and together as the “parties.”

This DPA reflects the parties’ agreement with regard to terms governing the Processing by CloudLinux outside of the European Economic Area (“EEA”), and Switzerland, and United Kingdom (“UK”), certain Personal Data in respect of which the Customer or any Affiliate of Customer may be a data controller or data processor, as applicable, under applicable EU and/or UK Data Protection Laws.

The parties have agreed to enter into this DPA in order to ensure that adequate safeguards are put in place with respect to the protection of such Personal Data as required by EU and/or UK Data Protection Laws.

DATA PROCESSING TERMS

In the course of providing the Service to Customer pursuant to the Main Agreement, CloudLinux may Process Personal Data on behalf of Customer. CloudLinux agrees to comply with the following provisions with respect to any Personal Data submitted by or for Customer to CloudLinux or collected and processed by or for Customer using CloudLinux’s Services.

1.                   Definitions

The following definitions are used in this DPA:

1.                   “Adequate Country” means a country or territory that is recognized under General Data Protection Regulation (EU) 2016/679 as providing adequate protection for Personal Data;
2.                   “Affiliate” means, with respect to a party, any corporate entity that, directly or indirectly, Controls, is Controlled by, or is under Common Control with such party (but only for so long as such Control exists);
3.                   “EU and UK Data Protection Laws” means the data protection and privacy laws and regulations enacted in Europe and applicable to the Personal Data in question, including as applicable: (i) the GDPR; (ii) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”); and (iii) in respect of the United Kingdom, the GDPR as it forms part of UK law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act 2018; in each case as may be amended, superseded or replaced from time to time;
4.                   “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 25 May 2018 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data);
5.                   “Personal Data” means all data which is defined as ‘personal data’ under General Data Protection Regulation (EU) 2016/679 and to which General Data Protection Regulation (EU) 2016/679 apply and which is provided by the Customer to CloudLinux, and accessed, stored or otherwise processed by CloudLinux as a data processor as part of its provision of the Service to Customer;
6.                   “Verified Technical Resource” means a category, in accordance with Article 13(1)(e) of the GDPR, of technical contractors verified by CloudLinux to be able to technically adhere to the security provisions of this DPA and the GDPR, have entered an agreement with CloudLinux at least as restrictive as this DPA; and may provide services to CloudLinux when requested.
7.                   “processing”, “data controller”, “data subject”, “supervisory authority” and “data processor” shall have the meanings ascribed to them in General Data Protection Regulation (EU) 2016/679.

An entity “Controls” another entity if it: (a) holds a majority of the voting rights in it; (b) is a member or shareholder of it and has the right to remove a majority of its board of directors or equivalent managing body; (c) is a member or shareholder of it and controls alone or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or (d) has the right to exercise a dominant influence over it pursuant to its constitutional documents or pursuant to a contract; and two entities are treated as being in “Common Control” if either controls the other (directly or indirectly) or both are controlled (directly or indirectly) by the same entity.

2.                   Status of the parties

2.1                The type of Personal Data processed pursuant to this DPA and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are as described in Annex 1.

2.2                Each party warrants in relation to Personal Data that it will comply (and will procure that any of its personnel comply and use commercially reasonable efforts to procure that its sub-processors comply), with General Data Protection Regulation (EU) 2016/679 (for EU customers) and UK GDPR as well as the DPA 2018 (for UK customers). As between the parties, the Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Customer acquired Personal Data.

2.3                In respect of the parties’ rights and obligations under this DPA regarding the Personal Data, the parties hereby acknowledge and agree that the Customer is the data controller or processor, and CloudLinux is the data processor or sub-processor, as applicable, and accordingly CloudLinux agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA.

2.4                If Customer is an EU-based data processor, Customer warrants to CloudLinux that Customer’s instructions and actions with respect to the Personal Data, including its appointment of CloudLinux as another processor and concluding the standard contractual clauses (Annex 2) with all relevant Appendixes, have been authorized by the relevant controller.

If Customer is a UK-based data processor, Customer warrants to CloudLinux that Customer’s instructions and actions with respect to the Personal Data, including its appointment of CloudLinux as another processor and concluding the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (Annex 4), have been authorized by the relevant controller.

2.5                Where and to the extent that CloudLinux processes data which is defined as ‘personal data’ under EU and UK Data Protection Laws as a data controller as set out in the CloudLinux Privacy Policy available at https://www.cloudlinux.com/privacy-policy/, CloudLinux will comply with applicable General Data Protection Regulation (EU) 2016/679 (for EU customers) and UK GDPR as well as the DPA 2018 (for UK customers) in respect of that processing.

2.6                Each party shall appoint a Data Privacy Officer within its organization authorized to respond from time to time to enquiries regarding Personal Data, the parties shall make the Data Privacy Officer known to the other party, and the Data Privacy Officer shall deal with such enquiries promptly.

3.                   CloudLinux obligations

3.1                With respect to all Personal Data, CloudLinux warrants that it shall:

(a)                 only process Personal Data in order to provide the Service, and shall act only in accordance with: (i) this DPA, (ii) the Customer’s written instructions as set forth in the Main Agreement and this DPA, and (iii) as required by applicable laws;

(b)                 upon becoming aware, inform the Customer if, in CloudLinux’s opinion, any instructions provided by the Customer under clause 3.1(a) are in conflict with the GDPR and UK GDPR as well as the DPA 2018;

(c)                 implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data. Such measures include, without limitation, the security measures set out in Appendix 2;

(d)                 take reasonable steps to ensure that only authorized personnel have access to such Personal Data and that any persons whom it authorizes to have access to the Personal Data are under obligations of confidentiality;

(e)                 without undue delay after becoming aware, notify the Customer of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by CloudLinux, its sub-processors, or any other identified or unidentified third party (a “Security Breach”);

(f)                  promptly provide the Customer with reasonable cooperation and assistance in respect of a Security Breach and all reasonable information in CloudLinux’s possession concerning such Security Breach insofar as it affects the Customer, including, to the extent then known, the following:

(i)                  the possible cause and consequences for the Data Subjects of the Security Breach;

(ii)                the categories of Personal Data involved;

(iii)               a summary of the possible consequences for the relevant data subjects;

(iv)               a summary of the unauthorized recipients of the Personal Data; and

(v)                 the measures taken by CloudLinux to mitigate any damage;

(g)                 not make any public announcement about a Security Breach (a “Breach Notice”) without the prior written consent of the Customer, unless required by applicable law;

(h)                 promptly notify the Customer if it receives a request from a data subject of Customer to access, rectify or erase that individual’s Personal Data, or if a data subject objects to the processing of, or makes a data portability request in respect of, such Personal Data (each a “Data Subject Request”). CloudLinux shall not respond to a Data Subject Request without the Customer’s prior written consent except to confirm that such request relates to the Customer, to which the Customer hereby agrees. To the extent that the Customer does not have the ability to address a Data Subject Request, then upon Customer’s request CloudLinux shall provide reasonable assistance to the Customer to facilitate such Data Subject Request to the extent able and in line with applicable law. To the extent the Customer does not respond, CloudLinux may respond to the Data Subject Request in any manner it deems appropriate. Customer shall cover all costs incurred by CloudLinux in connection with its provision of such assistance or response;

(i)                  other than to the extent required to comply with applicable law, following termination or expiry of the Main Agreement or completion of the Service, CloudLinux will delete all Personal Data (including copies thereof) processed pursuant to this DPA;

(j)                  considering the nature of processing and the information available to CloudLinux, provide such assistance to the Customer as the Customer reasonably requests in relation to CloudLinux’s obligations under General Data Protection Regulation (EU) 2016/679, and UK GDPR as well as the DPA 2018 with respect to:

(i)                  data protection impact assessments (as such term is defined in the GDPR, and UK GDPR as well as the DPA 2018);

(ii)                notifications to the supervisory authority under General Data Protection Regulation (EU) 2016/679, and UK GDPR as well as the DPA 2018 and/or communications to data subjects by the Customer in response to any Security Breach; and

(iii)               the Customer’s compliance with its obligations under the GDPR, and UK GDPR as well as the DPA 2018 with respect to the security of processing;

provided that the Customer shall cover all costs incurred by CloudLinux in connection with its provision of such assistance.

(k) provide to the Customer information about the region and country where the Personal Data is stored and processed by or on behalf of CloudLinux;

(l) communicate the exact address of the relevant facilities only in the event of an explicit request of competent Supervisory Authority and if the aforementioned communication is suitable to discharge its obligation under applicable EU and UK data protection laws.

4.                   Sub-processing

4.1                The Customer grants a general authorization: (a) to CloudLinux to appoint any Affiliate as sub- processors, and (b) to CloudLinux and any Affiliate to appoint any Verified Technical Resource to act as third-party data center operators, and outsourced marketing, business, engineering and customer support providers as sub-processors to support the performance of the Service.

4.2                CloudLinux will only use a Verified Technical Resource as sub-processors of any Personal Data. If CloudLinux is reasonably able to provide the Service to the Customer in accordance with the Main Agreement without using the sub-processor and decides in its discretion to do so, then the Customer will have no further rights under this clause 4.2 in respect of the proposed use of the sub-processor. If CloudLinux requires use of a sub-processor at its discretion and Customer does not want CloudLinux to use a Verified Technical Resource as a sub-processor, Customer may provide written notification of any objections to CloudLinux. Within ninety (90) days from the Customer’s notification of objections, the Customer may within thirty (30) days following the end of the ninety (90) day period referred to above, terminate the applicable Order Form without refund. If the Customer does not provide a timely objection to the use of a Verified Technical Resource in accordance with this clause 4.2, the Customer will be deemed to have consented to the use of any Verified Technical Resource as a sub-processor and waived its right to object. CloudLinux may use a new or replacement Verified Technical Resource as a sub-processor whilst the objection procedure in this clause 4.2 is in process.

4.3                CloudLinux will ensure that any sub-processor it engages to provide an aspect of the Service on its behalf in connection with this DPA does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on CloudLinux in this DPA (the “Relevant Terms“). CloudLinux shall procure the performance by such sub-processor of the Relevant Terms and shall be liable to the Customer for any breach by such person of any of the Relevant Terms.

4.4                The list of sub-processors used by CloudLinux is detailed in Annex 3 hereto.

5.                   Audit and records

5.1                CloudLinux shall, in accordance with General Data Protection Regulation (EU) 2016/679, and UK GDPR as well as the DPA 2018, make available to the Customer such information in CloudLinux’s possession or control as the Customer may reasonably request with a view to demonstrating CloudLinux’s compliance with the obligations of data processors under General Data Protection Regulation (EU) 2016/679, and UK GDPR as well as the DPA 2018 in relation to its processing of Personal Data.

5.2                The Customer may exercise its right of audit under General Data Protection Regulation (EU) 2016/679, and UK GDPR as well as the DPA 2018 in relation to Personal Data, through CloudLinux providing:

(a)  an audit report not older than eighteen (18) months, prepared by an independent external auditor demonstrating that CloudLinux’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard;

1. b)                   additional information in CloudLinux’s possession or control to an EU and/or UK supervisory authority when it requests or requires additional information in relation to the processing of Personal Data carried out by CloudLinux under this DPA; and
2. c)                   A Customer shall cover all costs incurred by CloudLinux in connection with any such audit.

6.                   Data transfers

6.1                To the extent any processing of Personal Data by CloudLinux takes place in any country outside the EEA and/or UK (except if in an Adequate Country), the parties agree that for EU-based customers the standard contractual clauses approved by the EU authorities under General Data Protection Regulation (EU) 2016/679 and set out in Annex 2 and for UK-based customers the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses set out in Annex 4 will apply in respect of that processing, and CloudLinux will comply with the obligations of the ‘data importer’ in the standard contractual clauses and the Customer will comply with the obligations of the ‘data exporter’.

6.2                The Customer acknowledges and accepts that the provision of the Service under the Main Agreement may require the processing of Personal Data by sub-processors in countries outside the EEA and/or UK.

6.3                If, in the performance of this DPA, CloudLinux transfers any Personal Data to a Verified Technical Sub-processor located outside of the EEA and/or UK (without prejudice to clause 4), CloudLinux shall in advance of any such transfer ensure that a legal mechanism to achieve adequacy in respect of that processing is in place, such as:

(a)                 the requirement for CloudLinux to execute or procure that the Verified Technical Sub-processor execute to the benefit of the EU-based Customer standard contractual clauses approved by the EU authorities under General Data Protection Regulation (EU) 2016/679 and set out in Annex 2, and for the for UK-based Customer the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses set out in Annex 4;

(b)                 the requirement for the Verified Technical Sub-processor to have any specifically approved safeguard for data transfers (as recognized under General Data Protection Regulation (EU) 2016/679, and UK GDPR as well as the DPA 2018) and/or a European or United Kingdom Commission finding of adequacy.

6.4                The following terms shall apply to the standard contractual clauses set out in Annex 2:

(a)                 The Customer may exercise its right of audit under clause 5.1(f) of the standard contractual clauses as set out in, and subject to the requirements of, clause 5.2 of this DPA; and

(b)                 CloudLinux may appoint Verified Technical Sub-processors as set out, and subject to the requirements of, clauses 4 and 6.3 of this DPA.

7.                   General

7.1                This DPA is without prejudice to the rights and obligations of the parties under the Main Agreement which shall continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Main Agreement, the terms of this DPA shall prevail so far as the subject matter concerns the processing of Personal Data.

7.2                CloudLinux’s liability under or in connection with this DPA (including under the standard contractual clauses set out in Annex 2) is subject to the limitations on liability contained in the Main Agreement.

7.3                This DPA does not confer any third-party beneficiary rights, it is intended for the benefit of the parties hereto and their respective permitted successors and assigns only, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.

7.4                This DPA and any action related thereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of laws principles. The parties consent to the personal jurisdiction of, and venue in, the courts of California.

7.5                This DPA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matter. Other than in respect of statements made fraudulently, no other representations or terms shall apply or form part of this DPA. No modification of, amendment to, or waiver of any rights under the DPA will be effective unless in writing and signed by an authorized signatory of each party. This DPA may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. Each person signing below represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this DPA. Each party represents and warrants to the other that the execution and delivery of this DPA and the performance of such party’s obligations hereunder, have been duly authorized and that this DPA is a valid and legally binding agreement on each such party, enforceable in accordance with its terms.

 

 

 

Annex 1

Details of the Personal Data and processing activities

(a)             The nature of the Personal Data processing is subject to the following, to the extent permitted under Data Protection Laws, and the Agreement: 1) Receiving data, including collection, accessing, and recording; 2) Holding data, including storage, organization and structuring; 3) Using data, including analyzing, consultation, and testing; 4) Protecting data, including restricting; 5) Erasing data, including destruction and deletion.

(b)             The purpose of the Personal Data processing is to provide the Service to Customer, pursuant to the Main Agreement;

(c)             The types of the Personal Data that may be processed include: username, files name, IP address, and user performance data. Files name and SQL requests from the users might consist of the different types of PII of the user that solely depends on the user`s realization of the server part.

(d)             The duration of the processing will be: until the earliest of (i) expiry/termination of the Main Agreement, or (ii) the date upon which processing is no longer necessary for the purposes of either party performing its obligations under the Main Agreement (to the extent applicable);

(e)             The Data Subjects whose Personal Data may be processed in terms of provision the Service to Customer including but not limited to:

•   Prospective customers, customers, resellers, referrers, business partners, and vendors of the Customer (who are natural persons);
•   Employees or contact persons of the Customer’s prospective customers, customers, resellers, referrers, sub-processors, business partners, and vendors (who are natural persons);
•   Employees, agents, advisors, and freelancers of the Customer (who are natural persons); and/or
•   Natural persons authorized by the Customer to use the Service.

(f)              The location of Personal Data storage is 1) Hetzner data centers in Germany; 2) Atman data centers in Poland, and 3) Hivelocity data centers in Florida, United States.

(g)             The retention period of Personal Data that may be processed is the following:

Any file with Personal Data will be deleted in 60 (sixty) days upon identification and receival.

 

Annex 2

STANDARD CONTRACTUAL CLAUSES

(for EU-based customers only)

SECTION I

Clause 1

Purpose and scope

(a)                 The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.

(b)                 The Parties:

(i)                  the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Appendix 1.A (hereinafter each ‘data exporter’), and

(ii)                the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Appendix 1.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c)                 These Clauses apply with respect to the transfer of personal data as specified in Appendix 1.B.

(d)                 The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a)                 These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

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

Clause 3

Third-party beneficiaries

(a)                 Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions: (i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7; (ii) Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); (iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); (iv) Module Two: Clause 12(a), (d) and (f); (v)  Clause 13; (vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e); (viii) Module Two – Clause 18(a) and (b).

(b)                 Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a)                 Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)                 These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)                 These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Appendix 1.B.

 

Clause 7 – Optional

Docking clause

(a)                 An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Appendix 1.A.

(b)                 Once it has completed the Appendix and signed Appendix 1.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Appendix 1.A.

(c)                 The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

 

MODULE TWO: Transfer controller to processor

8.1                Instructions

(a)                 The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b)                 The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2                Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Appendix 1.B, unless on further instructions from the data exporter.

 

8.3                Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Appendix 2 and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4                Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5                Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Appendix 1.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6                Security of processing

(a)                 The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Appendix 2. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b)                 The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c)                 In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d)                 The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, considering the nature of processing and the information available to the data importer.

8.7                Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Appendix 1.B.

8.8                Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union

(4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i)                  the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii)                the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii)               the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv)               the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9                Documentation and compliance

(a)                 The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b)                 The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c)                 The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may consider relevant certifications held by the data importer.

(d)                 The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e)                 The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

MODULE TWO: Transfer controller to processor

(a)                 GENERAL WRITTEN AUTHORISATION. The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least sixty (60) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b)                 Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c)                 The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d)                 The data importer shall remain fully responsible to the data exporter for the performance of the sub- processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.

(e)                 The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

MODULE TWO: Transfer controller to processor

(a)                 The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.

(b)                 The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, considering the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

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

Clause 11

Redress

(a)                 The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body (11) at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such a redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.

(b)                 In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c)                 Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i)                  lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii)                refer the dispute to the competent courts within the meaning of Clause 18.

(d)                 The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e)                 The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f)                  The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

MODULE TWO: Transfer controller to processor

(a)                 Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b)                 The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c)                 Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d)                 The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e)                 Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f)                  The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g)                 The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

 

Clause 13

Supervision

(a)                 Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Appendix 1.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Appendix 1.C, shall act as competent supervisory authority.

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

(b)                 The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

 

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

(a)                 The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b)                 The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i)                  the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii)                the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);

(iii)               any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c)                 The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d)                 The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e)                 The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f)                  Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

 

Clause 15

Obligations of the data importer in case of access by public authorities

15.1             Notification

(a)                 The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i)                  receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii)                becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b)                 If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c)                 Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d)                 The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e)                 Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2             Review of legality and data minimization

(a)                 The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b)                 The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c)                 The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a)                 The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)                 In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c)                 The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i)                  the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii)                the data importer is in substantial or persistent breach of these Clauses; or

(iii)               the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d)                 Personal data that has been transferred prior to the termination of the contract pursuant to paragraph

(c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)                 Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of The Netherlands.

Clause 18

Choice of forum and jurisdiction

(a)                 Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b)                 The Parties agree that those shall be the courts of The Netherlands.

(c)                 A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d)                 The Parties agree to submit themselves to the jurisdiction of such courts.

This agreement has been entered into on the date shown at the beginning of the first page of this agreement.

 

 

Appendix 1

to the Standard Contractual Clauses

A.        LIST OF PARTIES

Data exporter(s): The data exporter is (please specify briefly your activities relevant to the transfer):

The (i) legal entity that has created an account with CloudLinux, Inc. (“CloudLinux”) for provision of the Service, and executed the Clauses as a data exporter and, (ii) all affiliates of such entity established within the EEA, which have purchased services from CloudLinux or its Affiliates.

Data importer(s): The data importer is (please specify briefly activities relevant to the transfer):

CloudLinux, that processes Personal Data upon the instruction of the data exporter in accordance with the terms of the agreement between the data exporter and CloudLinux.

 

B.                  DESCRIPTION OF TRANSFER

MODULE TWO: Transfer controller to processor

Categories of data subjects whose personal data is transferred

The personal data transferred concern the following categories of data subjects (please specify):

The data exporter may submit Personal Data to CloudLinux and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

•   Prospective customers, customers, resellers, referrers, business partners, and vendors of the data exporter (who are natural persons);
•   Employees or contact persons of the data exporter’s prospective customers, customers, resellers, referrers, subcontractors, business partners, and vendors (who are natural persons);
•   Employees, agents, advisors, and freelancers of the data exporter (who are natural persons); and/or
•   Natural persons authorized by the data exporter to use the services provided by CloudLinux, Inc. to the data exporter.

Categories of personal data transferred

The personal data transferred concern the following categories of data:

The data exporter may submit Personal Data to CloudLinux, Inc. and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to, the following categories of Personal Data:

•   Username, files name, IP address, and user performance data. Files name and SQL requests from the users might consist of the different types of PII of the user that solely depends on the user`s realization of the server part.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

The personal data transferred concern the following special categories of data: NONE.

The data exporter should not provide or submit any special categories of data to CloudLinux and its Affiliates.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

The data is transferred on a continuous basis.

Nature of the processing

The personal data transferred will be subject to the following basic processing activities (please specify):

1) Receiving data, including collection, accessing, and recording; 2) Holding data, including storage, organization and structuring; 3) Using data, including analyzing, consultation, and testing; 4) Protecting data, including restricting; 5) Erasing data, including destruction and deletion.

Purpose(s) of the data transfer and further processing

The personal data transferred will be subject to the following basic processing activities (please specify):

The objective of the processing of Personal Data by CloudLinux is to provide the Service, pursuant to the Main Agreement.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Any file with Personal Data will be deleted in 60 (sixty) days upon identification and receival.

 

C.        COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

The Dutch Data Protection Authority is a competent supervisory authority.

 

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA:

Security Measures

1.             Data importer/sub-processor has implemented and shall maintain a security program in accordance with industry standards.
2.             More specifically, data importer/sub-processor’s security program shall include:

Access Control of Processing Areas

Data importer/sub-processor implements suitable measures in order to prevent unauthorized persons from gaining access to the data processing equipment (namely telephones, database and application servers and related hardware) where the personal data are processed or used, including:

•   protection and restriction of access paths;
•   establishing access authorizations for employees and third parties, including the respective documentation;
•   all access to the data center where personal data are hosted is logged, monitored, and tracked; and
•   the data center where personal data is hosted is secured by a security alarm system, and other appropriate security measures.

Access Control to Data Processing Systems

Data importer/sub-processor implements suitable measures to prevent their data processing systems from being used by unauthorized persons, including:

•   use of adequate encryption technologies;
•   automatic temporary lock-out of user laptop if left idle, identification and password required to reopen;
•   automatic temporary lock-out of the user ID when several erroneous passwords are entered, log file of events, monitoring of break-in-attempts (alerts); and
•   all access to data content is logged, monitored, and tracked.

Access Control to Use Specific Areas of Data Processing Systems

Data importer/sub-processor commits that the persons entitled to use their data processing system are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including:

•   employee policies and training in respect of each employee’s access rights to the personal data;
•   monitoring capability in respect of individuals who delete, add or modify the personal data;
•   release of data only to authorized persons, including allocation of differentiated access rights and roles;
•   use of adequate encryption technologies; and
•   control of files, controlled and documented destruction of data.

Availability Control

Data importer/sub-processor implements suitable measures to ensure that personal data are protected from accidental destruction or loss, including:

•   infrastructure redundancy; and
•   backup is stored at an alternative site and available for restore in case of failure of the primary system.

Transmission Control

Data importer/sub-processor implements suitable measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including:

•   use of adequate firewall, VPN and encryption technologies to protect the gateways through which the data travels;
•   certain highly confidential employee data is also encrypted within the system; and
•   providing user alert upon incomplete transfer of data (end to end check); and
•   as far as possible, all data transmissions are logged, monitored and tracked.

Input Control

Data importer/sub-processor implements suitable input control measures, including:

•   an authorization policy for the input, reading, alteration and deletion of data;
•   authentication of the authorized personnel;
•   protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data;
•   utilization of unique authentication credentials or codes (passwords);
•   automatic log-off of user ID’s that have not been used for a substantial period of time; and
•   proof established within data importer/sub-processor’s organization of the input authorization; and
•   electronic recording of entries.

Separation of Processing for different Purposes

Data importer/sub-processor implements suitable measures to ensure that data collected for different purposes can be processed separately, including:

•   access to data is separated through application security for the appropriate users;
•   modules within the data importer/sub-processor’s database separate which data is used for which purpose, i.e. by functionality and function;
•   at the database level, data is stored in different normalized tables, separated per module, per Controller Customer or function they support; and
•   interfaces, batch processes and reports are designed for only specific purposes and functions, so data collected for specific purposes is processed separately.

Documentation

Data importer/sub-processor will keep documentation of technical and organizational measures in case of audits and for the conservation of evidence. Data importer/sub-processor shall take reasonable steps to ensure that persons employed by it and other persons at the place of work concerned, are aware of and comply with the technical and organizational measures set forth in this Appendix 2.

Monitoring

Data importer/sub-processor shall implement suitable measures to monitor access restrictions to data importer/sub-processor’s system administrators and to ensure that they act in accordance with instructions received. This is accomplished by various measures including:

•   individual appointment of system administrators;
•   adoption of suitable measures to register system administrators’ access logs to the infrastructure and keep them secure, accurate and unmodified for at least six months;
•   yearly audits of system administrators’ activity to assess compliance with assigned tasks, the instructions received by the data importer/sub-processor and applicable laws;
•   keeping an updated list with system administrators’ identification details (e.g. name, surname, function or organizational area) and tasks assigned and providing it promptly to the data exporter upon request.

 

Annex 3

LIST OF SUB-PROCESSORS

MODULE TWO: Transfer controller to processor

The processor uses the following sub-processors during the cooperation with the controller:

Name of sub-processor	Physical location	Security measures	Purpose of processing
Hetzner Online GmbH	Nuremberg and Falkenstein/Vogtland, Germany.	ISO 27001:2013	Servers and DB.
Atman sp.zo.o. (formerly ATM S.A)	Warsaw, Poland.	ISO 27001:2013	Servers and DB.
Hivelocity, Inc.	Miami, FL, United States.	ISO 27001:2013 SOC 2 Type 2	Servers and DB.

 Annex 4

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

(for UK-based customers only)

Version B1.0, in force 21 March 2022

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties

Start date	The date of executing this Data Processing Agreement
The Parties	Exporter (who sends the Restricted Transfer)	Importer (who receives the Restricted Transfer)
Parties’ details	Full legal name: The (i) legal entity that has created an account with CloudLinux, Inc. (“CloudLinux”) for provision of the Service, and executed the Clauses as a data exporter and, (ii) all affiliates of such entities established within the UK, which have purchased services from CloudLinux or its Affiliates. Trading name (if different): pursuant to the Main Agreement. Main address (if a company registered address): pursuant to the Main Agreement. Official registration number (if any) (company number or similar identifier): pursuant to the Main Agreement.	Full legal name: Cloud Linux, Inc. Trading name (if different): CloudLinux Main address (if a company registered address): 2318 Louis Rd, Suite B Palo Alto, CA 94303, USA Official registration number (if any) (company number or similar identifier): C3727689
Key Contact	Full Name (optional):       Job Title:       Contact details including email:	Full Name (optional): Dmytro Pigul Job Title: Compliance Officer Contact details including email: [email protected]
Signature (if required for the purposes of Section ‎2)

Table 2: Selected SCCs, Modules and Selected Clauses

Addendum EU SCCs

The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information: Date:  June 4th, 2021 Reference (if any):   Other identifier (if any):   Or  the Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum:

 

Module	Module in operation	Clause 7 (Docking Clause)	Clause 11 (Option)	Clause 9a (Prior Authorisation or General Authorisation)	Clause 9a (Time period)	Is personal data received from the Importer combined with personal data collected by the Exporter?
1
2
3
4

Table 3

 

:Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: Data exporter(s): The data exporter is (please specify briefly your activities relevant to the transfer): The (i) legal entity that has created an account with CloudLinux, Inc. (“CloudLinux”) for provision of the Service, and executed the Clauses as a data exporter and, (ii) all affiliates of such entity established within the EEA, which have purchased services from CloudLinux or its Affiliates. Data importer(s): The data importer is (please specify briefly activities relevant to the transfer): CloudLinux, that processes Personal Data upon the instruction of the data exporter in accordance with the terms of the agreement between the data exporter and CloudLinux.

Annex 1B: Description of Transfer: Categories of data subjects whose personal data is transferred The personal data transferred concern the following categories of data subjects (please specify): The data exporter may submit Personal Data to CloudLinux and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: ·        Prospective customers, customers, resellers, referrers, business partners, and vendors of the data exporter (who are natural persons); ·        Employees or contact persons of the data exporter’s prospective customers, customers, resellers, referrers, subcontractors, business partners, and vendors (who are natural persons); ·        Employees, agents, advisors, and freelancers of the data exporter (who are natural persons); and/or ·        Natural persons authorized by the data exporter to use the services provided by CloudLinux, Inc. to the data exporter. Categories of personal data transferred The personal data transferred concern the following categories of data: The data exporter may submit Personal Data to CloudLinux, Inc. and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to, the following categories of Personal Data: ·        Username, files name, IP address, and user performance data. Files name and SQL requests from the users might consist of the different types of PII of the user that solely depends on the user`s realization of the server part. Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures. The personal data transferred concern the following special categories of data: NONE. The data exporter should not provide or submit any special categories of data to CloudLinux and its Affiliates. The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis). The data is transferred on a continuous basis. Nature of the processing The personal data transferred will be subject to the following basic processing activities (please specify): 1) Receiving data, including collection, accessing, and recording; 2) Holding data, including storage, organization and structuring; 3) Using data, including analyzing, consultation, and testing; 4) Protecting data, including restricting; 5) Erasing data, including destruction and deletion. Purpose(s) of the data transfer and further processing The personal data transferred will be subject to the following basic processing activities (please specify): The objective of the processing of Personal Data by CloudLinux is to provide the Service, pursuant to the Main Agreement. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period Any file with Personal Data will be deleted in 60 (sixty) days upon identification and receival.

Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: Security Measures C.              Data importer/sub-processor has implemented and shall maintain a security program in accordance with industry standards. D.              More specifically, data importer/sub-processor’s security program shall include: Access Control of Processing Areas Data importer/sub-processor implements suitable measures in order to prevent unauthorized persons from gaining access to the data processing equipment (namely telephones, database and application servers and related hardware) where the personal data are processed or used, including: ●   protection and restriction of access paths; ●   establishing access authorizations for employees and third parties, including the respective documentation; ●   all access to the data center where personal data are hosted is logged, monitored, and tracked; and ●   the data center where personal data is hosted is secured by a security alarm system, and other appropriate security measures. Access Control to Data Processing Systems Data importer/sub-processor implements suitable measures to prevent their data processing systems from being used by unauthorized persons, including: ●   use of adequate encryption technologies; ●   automatic temporary lock-out of user laptop if left idle, identification and password required to reopen; ●   automatic temporary lock-out of the user ID when several erroneous passwords are entered, log file of events, monitoring of break-in-attempts (alerts); and ●   all access to data content is logged, monitored, and tracked. Access Control to Use Specific Areas of Data Processing Systems Data importer/sub-processor commits that the persons entitled to use their data processing system are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including: ●   employee policies and training in respect of each employee’s access rights to the personal data; ●   monitoring capability in respect of individuals who delete, add or modify the personal data; ●   release of data only to authorized persons, including allocation of differentiated access rights and roles; ●   use of adequate encryption technologies; and ●   control of files, controlled and documented destruction of data. Availability Control Data importer/sub-processor implements suitable measures to ensure that personal data are protected from accidental destruction or loss, including: ●   infrastructure redundancy; and ●   backup is stored at an alternative site and available for restore in case of failure of the primary system. Transmission Control Data importer/sub-processor implements suitable measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including: ●   use of adequate firewall, VPN and encryption technologies to protect the gateways through which the data travels; ●   certain highly confidential employee data is also encrypted within the system; and ●   providing user alert upon incomplete transfer of data (end to end check); and ●   as far as possible, all data transmissions are logged, monitored and tracked. Input Control Data importer/sub-processor implements suitable input control measures, including: ●   an authorization policy for the input, reading, alteration and deletion of data; ●   authentication of the authorized personnel; ●   protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data; ●   utilization of unique authentication credentials or codes (passwords); ●   automatic log-off of user ID’s that have not been used for a substantial period of time; and ●   proof established within data importer/sub-processor’s organization of the input authorization; and ●   electronic recording of entries. Separation of Processing for different Purposes Data importer/sub-processor implements suitable measures to ensure that data collected for different purposes can be processed separately, including: ●   access to data is separated through application security for the appropriate users; ●   modules within the data importer/sub-processor’s database separate which data is used for which purpose, i.e. by functionality and function; ●   at the database level, data is stored in different normalized tables, separated per module, per Controller Customer or function they support; and ●   interfaces, batch processes and reports are designed for only specific purposes and functions, so data collected for specific purposes is processed separately. Documentation Data importer/sub-processor will keep documentation of technical and organizational measures in case of audits and for the conservation of evidence. Data importer/sub-processor shall take reasonable steps to ensure that persons employed by it and other persons at the place of work concerned, are aware of and comply with the technical and organizational measures set forth in this Appendix 2. Monitoring Data importer/sub-processor shall implement suitable measures to monitor access restrictions to data importer/sub-processor’s system administrators and to ensure that they act in accordance with instructions received. This is accomplished by various measures including: ●   individual appointment of system administrators; ●   adoption of suitable measures to register system administrators’ access logs to the infrastructure and keep them secure, accurate and unmodified for at least six months; ●   yearly audits of system administrators’ activity to assess compliance with assigned tasks, the instructions received by the data importer/sub-processor and applicable laws; keeping an updated list with system administrators’ identification details (e.g. name, surname, function or organizational area) and tasks assigned and providing it promptly to the data exporter upon request.

Annex III: List of Sub Processors (Modules 2 and 3 only): Name of sub-processor Physical location Security measures Purpose of processing Hetzner Online GmbH Nuremberg and Falkenstein/Vogtland, Germany. ISO 27001:2013 Servers and DB. Atman sp.zo.o. (formerly ATM S.A) Warsaw, Poland. ISO 27001:2013 Servers and DB. Hivelocity, Inc. Miami, FL, United States. ISO 27001:2013 SOC 2 Type 2 Servers and DB.

Table 4: Ending this Addendum when the Approved Addendum Changes

Ending this Addendum when the Approved Addendum changes

Which Parties may end this Addendum as set out in Section 19:  Importer  Exporter  neither Party

Part 2: Mandatory Clauses

Entering into this Addendum

1.       Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2.       Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3.       Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

Addendum	This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCs	The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.
Appendix Information	As set out in Table ‎3.
Appropriate Safeguards	The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved Addendum	The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.
Approved EU SCCs	The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICO	The Information Commissioner.
Restricted Transfer	A transfer which is covered by Chapter V of the UK GDPR.
UK	The United Kingdom of Great Britain and Northern Ireland.
UK Data Protection Laws	All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPR	As defined in section 3 of the Data Protection Act 2018.

4.       This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.
5.       If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6.       If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7.       If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8.       Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9.       Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10.     Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11.     Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12.     This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
13. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
14. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
15. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
16.     Unless the Parties have agreed alternative amendments, which meet the requirements of Section 12, the provisions of Section 15 will apply.
17.     No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
18.     The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
19.     References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
20.     In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

1.     Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

8.     Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

8.     Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

1.       References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
2.     References to Regulation (EU) 2018/1725 are removed;
3.     References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
4.       The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
5.       Clause 13(a) and Part C of Annex I are not used;
6.     The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
7.       In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

1.   Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

1.     Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

11.     The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

 

Amendments to this Addendum

16.     The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17.     If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18.     From time to time, the ICO may issue a revised Approved Addendum which:
19.     makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
20.     reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19.     If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:

a          its direct costs of performing its obligations under the Addendum; and/or

b          its risk under the Addendum,

and in either case, it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20.     The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Alternative Part 2 Mandatory Clauses:

Mandatory Clauses

Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎18 of those Mandatory Clauses.