The customer who agrees to these terms (“Customer”) enters into an agreement with FirePush Ltd (“FirePush”) under which FirePush agrees to provide services to the Customer (services can be amended from time to time, the “Agreement“).
This Data Protection Addendum, including attachments (“Addendum”), is effective and replaces any previously applicable data processing and security terms as of the Addendum Effective Date (defined below). This Addendum forms part of the Agreement and consists of (a) the main body of the Addendum; (b) Subject Matter and Detail of Data Processing (Attachment 1); (c) Security Measures (Attachment 2);
1. Definitions
For purposes of this Addendum, the terms below shall have the detail the meanings as below. Capitalized terms that are used but not otherwise defined in this Addendum shall detail the meanings in the Agreement.
1.1 “Addendum Effective Date” means, as applicable, (a) 25 May 2018, if the parties agreed to this Addendum prior to or on that date; or (b) the date on which the parties agreed to this Addendum, if that date is after 25 May 2018.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
1.3 “Audit Reports” - refer to meaning given in Section 5.4.4.
1.4 “Customer Personal Data” refers to any personal data contained within the data provided to or accessed by FirePush by or on behalf of the Customer or the Customer’s end users in connection with the Services.
1.5 “EEA” refers to the European Economic Area.
1.6 “EU” refers to the European Union.
1.7 “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.
1.8 “GDPR” means 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, and repealing Directive 95/46/EC.
1.9 “Information Security Incident” means a breach of FirePush’s security, leading to the accidental or unlawful loss, alteration, destruction, unauthorized disclosure of, or access to, Customer Personal Data in FirePush’s possession, custody or control. “Information Security Incidents” do not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful login attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
1.10 “Model Contract Clauses” or “MCCs” refer to the standard data protection clauses for the transfer of personal data to processors established in countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
1.11 “Security Documentation” refers to all documents and information made available by FirePush under Section 5.4.1 (Reviews of Security Documentation).
1.12 “Security Measures” - see Section 5.1.1 (FirePush’s Security Measures).
1.13 “Services” means the services and/or products provided by FirePush to the Customer under the Agreement.
1.14 “Sub Processors” refers to the third parties authorized under this Addendum to process Customer Personal Data related to the Services.
1.15 “Term” means the period from the Addendum Effective Date until the end of FirePush’s provision of the Services.
1.16 “Third Party Sub Processors” - see Section 9 (Sub Processors).
1.17 “Transfer Solution” means the Model Contract Clauses or another solution that enables the lawful transfer of personal data to a third party in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
1.18 The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses.
2. Duration of Addendum
This Addendum will take effect on the Addendum Effective Date (25th May 2018) and, notwithstanding the expiration of the Term, will remain effective until, and automatically expire upon, FirePush’s deletion of all Customer Personal Data as described in this Addendum.
3. Processing of Data
3.1 Roles & Regulatory Compliance; Authorization.
3.1.1 Processor and Controller Responsibilities.
If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
(a) The subject matter and details of processing are described in Attachment 1;
(b) FirePush is a processor of that Customer Personal Data under the European Data Protection Legislation;
(c) The Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
(d) Each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
3.1.2 Authorization by Third Party Controller.
If the European Data Protection Legislation applies to the processing of Customer Personal Data and the Customer is a processor, the Customer warrants to FirePush that the Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of FirePush as another processor, have been authorized by the relevant controller.
3.2 Scope of Processing.
3.2.1 Customer’s Instructions.
By entering into this Addendum, the Customer instructs FirePush to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorized by the Agreement, including this Addendum; and (c) as further documented in any other written instructions given by the Customer and acknowledged in writing by FirePush as constituting instructions for purposes of this Addendum.
3.2.2 FirePush’s Compliance with Instructions.
FirePush will only process Customer Personal Data in accordance with the Customer’s instructions, as defined in Section 3.2.1 (including data transfers) unless European Data Protection Legislation to which FirePush is subject requires other processing of Customer Personal Data by FirePush, in which case FirePush will notify the Customer (unless law prohibits FirePush from doing so on the grounds of public interest).
4 Data Deletion
4.1 Deletion on Termination.
When the Term expires, the Customer instructs FirePush to delete all Customer Personal Data (including copies) from FirePush’s systems in accordance with applicable law as soon as reasonably practicable but no later than 180 days from the date of request, unless applicable law states otherwise.
5 Data Security
5.1 FirePush’s Security Measures, Controls and Assistance.
5.1.1 FirePush’s Security Measures.
FirePush will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful alteration, loss, destruction, unauthorized disclosure of or access to Customer Personal Data as described in Attachment 2 (the “Security Measures“). FirePush may update or modify the Security Measures occasionally, provided that such updates and modifications do not decrease the overall security of the Services.
5.1.2 Security Compliance by FirePush Staff.
FirePush will only grant access to Customer Personal Data to employees, contractors and Sub Processors who need this access for the scope of their tasks, and are subject to appropriate confidentiality arrangements.
5.1.3 FirePush’s Security Assistance.
FirePush will (taking into account the nature of the processing of Customer Personal Data and the information available to FirePush) provide the Customer with the necessary assistance to help the Customer comply with its obligations in respect of Customer Personal Data under European Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR, by:
(a) implementing and maintaining the Security Measures in accordance with Section 5.1.1 (FirePush’s Security Measures);
(b) complying with the terms of Section 5.2 (“Information Security Incidents”); and
(c) providing the Customer with the Security Documentation in accordance with Section 5.4.1 (“Reviews of Security Documentation”) and the Agreement, including this Addendum.
5.2 Information Security Incidents
5.2.1 Information Security Incident Notification.
If FirePush becomes aware of an Information Security Incident, FirePush will: (a) notify the Customer of the Information Security Incident without delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the cause of such Information Security Incident, minimize potential harm and prevent the incident for recurring.
5.2.2 Details of Information Security Incident.
Notifications made pursuant to this Section 5.2 (“Information Security Incidents”) will describe, to the possible extent, details of the Information Security Incident, including steps taken to mitigate potential risks and steps FirePush recommends the Customer take to address the Information Security Incident.
5.2.3 Notification.
The Customer is solely responsible for complying with incident notification laws applicable to the Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).
5.2.4 No Acknowledgement of Fault by FirePush.
FirePush’s notification of or response to an Information Security Incident under this Section 5.2 (“Information Security Incidents”) will not be construed as an acknowledgement by FirePush of any fault or liability with respect to the Information Security Incident.
5.3 Customer’s Security Responsibilities and Assessment.
5.3.1 Customer’s Security Responsibilities.
The Customer agrees that, without prejudice to FirePush’s obligations under Section 5.1 (“FirePush’s Security Measures, Controls and Assistance”) and Section 5.2 (“Information Security Incidents”):
(a) The Customer is solely responsible for its use of the Services, including:
(i) Making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
(ii) Protecting the account authentication credentials, systems and devices the Customer uses to access the Services;
(iii) Securing the Customer’s systems and devices FirePush uses to provide the Services;
(iv) Backing up its Customer Personal Data; and
(b) FirePush has no obligation to protect Customer Personal Data that the Customer stores or transfers outside of FirePush’s and its Sub Processes’ systems (for example, offline or on-premises storage).
5.3.2 Customer’s Security Assessment.
(a) The Customer is solely responsible for reviewing the Security Documentation and evaluating whether the Services, the Security Measures and FirePush’s commitments under this Section 5 (“Data Security”) meet the Customer’s needs, including relating to any of the Customer’s security obligations under the European Data Protection Legislation.
(b) The Customer acknowledges and agrees that (taking into account the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by FirePush as set out in Section 5.1.1 (“FirePush’s Security Measures”) provide a level of security appropriate to the risk in respect of Customer Personal Data.
5.4 Reviews and Audits of Compliance
5.4.1 The Customer may audit FirePush’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by European Data Protection Legislation, including where mandated by the Customer’s supervisory authority, the Customer or Customer’s supervisory authority may perform audits (or inspections) more frequently. FirePush will contribute to such audits by providing the Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities, where applicable to the Services.
5.4.2 If a third party conducts the audit, FirePush may object to the auditor if the auditor is, in FirePush’s reasonable opinion, not suitably qualified or independent, a competitor of FirePush, or otherwise manifestly unsuitable. Such objection by FirePush will require the Customer to appoint a different auditor or to conduct the audit itself.
5.4.3 To request an audit, the Customer must submit a detailed proposed audit plan to [email protected] at least two weeks before the proposed audit date. The proposed audit plan must describe the audit’s proposed scope, duration, and start date. FirePush will review the proposed audit plan and provide the Customer with any concerns or questions (for example, any request for information that could compromise FirePush security, privacy, employment or other relevant policies). FirePush will work cooperatively with the Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require FirePush to breach any duties of confidentiality.
5.4.4 If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third-party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and FirePush confirms there are no known material changes in the controls audited, the Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
5.4.5 The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and FirePush’s Health and Safety policy, or other relevant policies, and must not unreasonably interfere with FirePush’s business activities.
5.4.6 The Customer will promptly notify FirePush of any non-compliance discovered during the course of an audit and provide FirePush any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by European Data Protection Legislation or otherwise instructed by a supervisory authority. The Customer may use the audit reports only for the purposes of meeting the Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports are the parties’ Confidential Information under the terms of the Agreement.
5.4.7 Any audits are carried out at the Customer’s expense. The Customer shall reimburse FirePush for any time expended by FirePush or its Third Party Sub Processors in connection with any audits or inspections under this Section 5.4 at FirePush’s then-current professional services rates, which shall be made available to the Customer upon request. The Customer will be responsible for any fees charged by any auditor appointed by the Customer to execute any such audit.
5.4.8 The parties agree that this Section 5.4 shall satisfy FirePush’s obligations under the audit requirements of the Model Contractual Clauses applied to Data Importer under Clause 5(f) and to any Sub-processors under Clause 11 and Clause 12(2).
6 Impact Assessments and Consultations
FirePush will (taking into account the nature of the processing and the information available to FirePush) reasonably assist the Customer to comply with its obligations under European Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, the Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:
6.1 Making available for review copies of the Audit Reports or other documentation describing relevant aspects of FirePush’s information security program and the security measures applied in connection therewith; and
6.2 Providing the information contained in the Agreement, including this Addendum.
7 Data Subject Rights
7.1 Customer’s Responsibility for Requests.
During the Term, if FirePush receives any request from a data subject in relation to Customer Personal Data, FirePush will advise the data subject to submit their request to the Customer and the Customer will be responsible for responding to this request.
7.2 FirePush’s Data Subject Request Assistance.
FirePush will (taking into account the nature of the processing of Customer Personal Data) provide the Customer with self-service functionality through the Services or other reasonable assistance as necessary for the Customer to fulfil its obligation under European Data Protection Legislation to respond to requests by data subjects, including, if applicable, the Customer’s obligation to respond to requests for exercising the data subject’s rights set out in in Chapter III of the GDPR. The Customer shall reimburse FirePush for any such assistance beyond providing self-service features included as part of the Services at FirePush’s then-current professional services rates, details of which shall be made available to the Customer upon request.
8 Data Transfers
8.1 Data Storage and Processing Facilities.
FirePush may, subject to Section 8.2 (“Transfers of Data Out of the EEA”), store and process Customer Personal Data anywhere FirePush or its Subprocessors maintains facilities.
8.2 Transfers of Data Out of the EEA.
8.2.1 FirePush’s Transfer Obligations.
If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (“Data Storage and Processing Facilities”) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), FirePush will make such transfers in accordance with a Transfer Solution, and make information available to the Customer about such Transfer Solution upon request.
8.2.2 Customer’s Transfer Obligations.
In respect of Transferred Personal Data, the Customer agrees that if under European Data Protection Legislation FirePush reasonably requires the Customer to enter into Model Contract Clauses or use another Transfer Solution offered by FirePush, and reasonably requests that the Customer take any action (which may include execution of documents) required to give full effect to such solution, the Customer will do so.
8.3 Disclosure of Confidential Information Containing Personal Data.
If the Customer has entered into Model Contract Clauses as described in Section 8.2 (“Transfers of Data Out of the EEA”), FirePush will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Model Contract Clauses. For the purposes of the Model Contract Clauses, the Customer and FirePush agree that (i) the Customer will act as the data exporter on the Customer’s own behalf and on behalf of any of the Customer’s entities and (ii) FirePush or its relevant Affiliate will act on its own behalf and/or on behalf of FirePush’s Affiliates as the data importers.
9 Subprocessors
9.1 Consent to Subprocessor Engagement.
The Customer specifically authorizes the engagement of FirePush’s Affiliates as Sub Processors, as well as the engagement of any other third parties as Sub Processors (“Third Party Sub Processors”). If the Customer has entered into Model Contract Clauses as described in Section 9.2 (“Transfers of Data Out of the EEA”), the above authorizations will constitute Customer’s prior written consent to FirePush’s subcontracting of the processing of Customer Personal Data if such consent is required under the Model Contract Clauses.
9.2 Information about Subprocessors.
Information about Sub Processors, including their functions and locations, is available here (and may be occasionally updated by FirePush in accordance with this Addendum).
9.3 Requirements for Subprocessor Engagement.
When engaging any Subprocessor, FirePush will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. FirePush shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
9.4 Opportunity to Object to Subprocessor Changes.
When any new Third Party Subprocessor is engaged during the Term, FirePush will, at least 30 days before the new Third Party Subprocessor processes any Customer Personal Data, notify the Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).
The Customer may object to any new Third Party Subprocessor by providing written notice to FirePush within ten (10) business days of being informed of the engagement of the Third Party Subprocessor, as described above. In the event the Customer objects to a new Third Party Subprocessor, the Customer and FirePush will work together to find a mutually acceptable resolution to address the objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, the Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to FirePush.
10 Processing Records
10.1 FirePush’s Processing Records.
The Customer acknowledges that FirePush is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which FirePush is acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, the Customer will, where requested, provide such information to FirePush, and will ensure that all information provided is accurate and up-to-date.
11 Liability
11.1 Liability Cap.
The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Addendum, and the Model Contract Clauses if entered into as described in Section 8.2 (“Transfers of Data Out of the EEA”), will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).
11.2 Liability Cap Exclusions.
Nothing in Section 11.1 (“Liability Cap”) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Model Contract Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.
12 Third Party Beneficiary
Notwithstanding anything to the contrary in the Agreement, where FirePush is not a party to the Agreement, FirePush will be a third party beneficiary of Section 5.4 (“Reviews and Audits of Compliance”), Section 9.1 (“Consent to Subprocessor Engagement”) and Section 11 (“Liability”) of this Addendum.
13 Analytics
The Customer acknowledges and agrees that FirePush may create and derive from processing related to the Services anonymized and/or aggregated data that does not identify the Customer or any natural person, and use, publicize or share with third parties such data to improve FirePush’s products and services and for its other legitimate business purposes.
14 Notices
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by FirePush to the Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to FirePush’s primary points of contact with the Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. The Customer is solely responsible for ensuring that such email addresses are valid.
15 Effect of These Terms
Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.
Attachment 1
Subject Matter and Details of the Data Processing
Subject Matter:
FirePush’s provision of the Services to the Customer.
Duration of the Processing:
The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by FirePush in accordance with the Addendum.
Nature and Purpose of the Processing:
FirePush will process Customer Personal Data for the purposes of providing the Services to the Customer in accordance with the Addendum.
Categories of Data:
Data relating to individuals provided to FirePush in connection with the Services, by (or at the direction of) the Customer.
Attachment 2
Security Measures
As from the Addendum Effective Date, FirPush will implement and maintain the security measures set out in this Attachment 2. FirePush may occasionally update or modify such Security Measures provided that such updates and modifications do not materially decrease the overall security of the Services.
1) Organizational management and dedicated staff responsible for the development, implementation and maintenance of FirePush’s information security program.
2) Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to FirePush’s organization, monitoring and maintaining compliance with FirePush’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
3) Data security controls which include as a minimum, but may not be limited to, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Personal Data that is:
a) Transmitted over public networks (i.e. the Internet) or transmitted wirelessly; or
b) At rest or stored on portable or removable media (i.e. laptop computers, CD/DVD, USB drives, back-up tapes).
4) Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know and least privilege basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access rights promptly when employment terminates or changes in job functions occur).
5) Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that FirePush’s passwords assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on FirePush’s computer systems; (iii) must be changed every ninety (90) days; must have defined complexity; (v) must have a history threshold to prevent reuse of recent passwords; and (vi) newly issued passwords must be changed after the first use.
6) System audit or event logging and related monitoring procedures to proactively record user access and system activity for regular review.
7) Physical and environmental security of data center, server room facilities and other areas containing Personal Data designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of FirePush’s facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
8) Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems according to prescribed internal and adopted industry standards, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from FirePush’s possession.
9) Change management procedures and tracking mechanisms designed to test, approve and monitor all changes to FirePush’s technology and information assets.
10) Incident and problem management procedures designed to allow FirePush to investigate, respond to, mitigate and notify of events related to FirePush’s technology and information assets.
11) Network security controls that provide for the use of enterprise firewalls and layered DMZ architectures, intrusion detection systems, and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
12) Vulnerability assessment, patch management and threat protection technologies, and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
13) Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recover from foreseeable emergency situations or disasters.