This DPA is for illustrative purposes only. To request an executable version of this DPA, please email privacy@paloalto.com

Palo Alto Software Data Processing Agreement for LivePlan

This Palo Alto Software Data Processing Agreement (this “DPA”), is entered into by and between Palo Alto Software, Inc. and its UK subsidiary, Palo Alto Software, Ltd. (collectively “Palo Alto Software”) and __________________ (“Customer”) (each, a “Party” and collectively, the “Parties”). This DPA includes the Standard Contractual Clauses adopted by the European Commission and reflects the Parties' agreement with respect to the terms governing the Processing of Personal Data under the LivePlan Terms of Service (the “Agreement”). This DPA hereby supplements and amends the Agreement and shall be effectively immediately upon signing, as indicated by the date under the Parties signatures.

The term of this DPA shall follow the term of the Agreement.

Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.

This DPA Includes:

  1. Standard Contractual Clauses, attached hereto as exhibit 1.
  2. Appendix 1 to the Standard Contractual Clauses, which includes specifics on the Personal Data transferred by the data exporter to the data importer.
  3. Appendix 2 to the Standard Contractual Clauses, which includes a description of the technical and organizational security measures implemented by the data importer as referenced.

1. Definitions

“Agreement” means LivePlan's Terms of Service, which govern the provision of Services to Customer, as such terms may be updated by Palo Alto Software from time to time.

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Customer Data” means any Personal Data that Palo Alto Software Processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.

“Data Protection Law” means all laws applicable to the Processing of Customer Data, including EU Data Protection Laws, other laws of the European Union or any Member State thereof, and the laws of any other country to which Customer or Customer Data is subject.

“Data Subject” means the individual to whom Personal Data relates.

“EU Data Protection Laws” means all applicable legislation relating to data protection and privacy including without limitation the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time, to which the processing of Customer Data is subject. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

“GDPR” means the General Data Protection 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.

“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, or making available).

“Personal Data” means any information relating to an identified or identifiable individual where such information is protected as personal data or personally identifiable information under applicable Data Protection Laws.

“Personal Data Breach” means a 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.

“Privacy Shield” means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017, respectively.

“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.

“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

“Restricted Transfer” means any transfer of Customer Data that would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the execution of the Standard Contractual Clauses or another lawful data transfer mechanism, as set out in Section 9 below.

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.

“Services” means any product or service provided by Palo Alto Software to Customer pursuant to the Agreement.

“Standard Contractual Clauses” means the clauses attached hereto as Exhibit 1 pursuant to the European Commission's decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

2. Relationship with the Agreement

2.1. The parties agree that this DPA shall replace any existing DPA the parties may have previously entered into in connection with the Services.

2.2. Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

2.3. Any claims brought under or in connection with this DPA shall be subject to the terms and conditions (including but not limited to, the exclusions and limitations) set forth in the Agreement.

2.4. Any claims against Palo Alto Software or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by Palo Alto Software in relation to the Customer Data that arise as a result of, or in connection with, Customer's failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Palo Alto Software's liability under the Agreement as if it were liability to the Customer under the Agreement, to the fullest extent permitted under the applicable laws.

2.5. No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

2.6. This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

3. Scope and Applicability of this DPA

3.1. This DPA applies where and only to the extent that Palo Alto Software Processes Customer Data that is subject to Data Protection Laws on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.

3.2. If Palo Alto Software determines the purposes and means of Processing with respect to Customer Data and such Customer Data constitutes Personal Data under EU Data Protection Laws, Palo Alto Software shall be a Controller with respect to such Processing operations and shall act in accordance with the Palo Alto Software Privacy Policy and EU Data Protection Laws.

4. Roles and Scope of Processing

4.1. Role of the Parties. As between Palo Alto Software and Customer, Customer is the Data Controller (or the “Controller”) of Customer Data, and Palo Alto Software shall Process Customer Data only as a Data Processor (or the “Processor”) acting on behalf of Customer.

4.2. Controller Responsibilities. Within the scope of the Agreement and in its use of the services, Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data. For the avoidance of doubt, Controller's instructions for the Processing of Personal Data shall comply with the Data Protection Laws.

4.3. Palo Alto Software Processing of Customer Data. Palo Alto Software shall Process Customer Data only for the purposes described in this DPA and only in accordance with Customer's documented lawful instructions.

4.4. Details of Data Processing

  1. Categories of Data Subjects. Any individual accessing and/or using the Service through the Customer's account (“Users”); and any individual: (i) whose information is stored on or collected via the Services, or (ii) to whom Users send emails or otherwise engage or communicate with via the Services within the scope of the Agreement and this DPA, such as customers, business partners, or recipients of emails.
  2. Types of Customer Data. Biographical information, such as first and last name; contact information, such an email address; professional information; email messages and attachments; Personal Data such as navigational data and any other type of Personal Data captured through custom fields.
  3. Subject-Matter and Nature of the Processing. The subject matter of the data Processing under this DPA pertains to the provision of the Services. The nature of such Processing is related to these purposes and is elaborated on in this DPA and the Agreement.
  4. Purpose of the Processing. Personal Data will be Processed for purposes of providing the Services set out and otherwise agreed to in the Agreement and any applicable Order.
  5. Duration of the Processing. Personal Data will be Processed for the duration of the Agreement, subject to Section 5 of this DPA.

5. Compliance with Instructions

The parties acknowledge and agree that Customer is the Controller of Personal Data and Palo Alto Software is the Processor of that data. Processor shall collect, Process and use Personal Data only within the scope of Controller's Instructions. If the Processor believes that an Instruction of the Controller infringes the Data Protection Laws, it shall immediately inform the Controller without delay. If Processor cannot Process Personal Data in accordance with the Instructions due to a legal requirement under any applicable European Union or Member State law, Processor will (i) promptly notify the Controller of that legal requirement, before the relevant Processing, to the extent permitted by the Data Protection Laws; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which Processor is able to comply. If this provision is invoked, Processor will not be liable to the Controller under the Agreement for any failure to perform the applicable services until such time as the Controller issues new Instructions in regard to the Processing.

6. Security

6.1 Security Measures. Processor shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of Customer Data, as well as to assist Customer in ensuring compliance with its obligations pursuant to Article 32 of the GDPR, in accordance with Palo Alto Software's security standards described in Appendix 2.

6.2 Updates to Security Measures. Customer is responsible for reviewing the information made available by Palo Alto Software relating to data security and making an independent determination as to whether the Services meet Customer's requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that Palo Alto Software may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that, except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.

6.4 Confidentiality. Processor shall ensure that any personnel whom Processor authorizes to Process Personal Data on its behalf is subject to confidentiality obligations with respect to that Personal Data.

6.5. Personal Data Breaches. Processor will notify the Controller as soon as practicable after it becomes aware of any Personal Data Breach affecting any Customer Data. At the Controller's request, Processor will promptly provide the Controller with all reasonable assistance necessary to enable the Controller to notify relevant authorities and/or affected Data Subjects about Personal Data Breaches, if Controller is required to do so under the Data Protection Laws.

7. Security Reports and Audits

7.1. Customer acknowledges that Palo Alto Software is regularly audited against PCI standards by independent third party auditors and internal auditors. Upon request, Palo Alto Software shall supply (on a confidential basis) a summary copy of its audit report(s) to Customer, so that Customer can verify Palo Alto Software's compliance with the audit standards against which it has been assessed, and this DPA.

7.2. Palo Alto Software shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm Palo Alto Software's compliance with this DPA.

8. Sub-Processors

8.1. Authorized Sub-Processors. Processor shall be entitled to engage (and permit each sub-processor appointed in accordance with this Section 8 to appoint) sub-processors to fulfil Processor's obligations defined in the Agreement in accordance with this Section 8 and any possible further restrictions, as set out in the Agreement and this DPA. For these purposes, Controller consents to the engagement as sub-processors of the third parties listed in Exhibit 2.

8.2. Sub-Processor Obligations. Palo Alto Software shall remain responsible for the compliance of all sub-processors with the obligations of this DPA and for any acts or omissions of any sub-processor that cause Palo Alto Software to breach any of its obligations under this DPA.

8.3. Palo Alto Software may continue to use those sub-processors already engaged by Palo Alto Software as of the Effective Date subject to Palo Alto Software meeting the obligations set out in Section 8.5. The list of Palo Alto Software's sub-processors is located at: https://www.paloalto.com/policies/processors and shall allow for subscriptions to updates to the list of sub-processors by email.

8.4. Customer may object in writing to Palo Alto Software's appointment of a new sub-processor within five (5) calendar days of notice of that sub-processor's appointment, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss Customer's concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).

8.5 With respect to each sub-processor, Palo Alto Software shall (i) carry out adequate due diligence to ensure that the sub-processor is capable of providing the level of protection for Customer Data required by this DPA, the Agreement, and Data Protection Laws before the sub-processor first Processes Customer Data or, where applicable, in accordance with Section 8.3; and (ii) ensure that the arrangement between: on the one hand, (i) Palo Alto Software, or (ii) the relevant intermediate sub-processor; and on the other hand, the prospective sub-processor, is governed by a written contract, including terms which offer at least the same level of protection for Customer Data as those set out in this DPA, and that such terms meet the requirements of Article 28(3) of the GDPR.

9. Data Transfers

9.1. Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Data will be transferred to Palo Alto Software in the United States. Palo Alto Software has certified to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks as administered by the U.S. Department of Commerce, in order to implement appropriate safeguards for such transfers pursuant to Article 46 of the GDPR.

9.2. Customer (as “data exporter”) and Palo Alto Software (as “data importer”) hereby enter into, as of the Effective Date, the Standard Contractual Clauses, as set out in Exhibit 1, attached hereto and incorporated by reference, and which constitute an integral part of this DPA. Customer and Palo Alto Software are deemed to have accepted and executed the Standard Contractual Clauses in their entirety, including the appendices thereto.

9.3. With regard to any Restricted Transfer from Customer to Palo Alto Software within the scope of this DPA, one of the following transfer mechanisms shall apply, in the following order of precedence:

  1. Palo Alto Software's EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications (if any);
  2. the Standard Contractual Clauses (insofar the prospective Restricted Transfer would be considered lawful under this mechanism); or
  3. any other lawful basis, as laid down in Data Protection Laws.

9.4. In cases where the Standard Contractual Clauses apply and there is a conflict between the terms of this DPA and the terms of the Standard Contractual Clauses, the terms of the Standard Contractual Clauses shall control.

10. Deletion or Retrieval of Personal Data.

10.1. Upon termination or expiration of the Agreement, Palo Alto Software shall (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Palo Alto Software is required or allowed by Data Protection Laws to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Palo Alto Software shall securely isolate and protect from any further Processing, except to the extent required or allowed by Data Protection Laws.

11. Cooperation

11.1. Data Subject Requests. Processor will provide reasonable assistance, including by taking appropriate technical and organizational measures and taking into account the nature of the Processing, to enable Controller to respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Laws with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law. If such request is made directly to Processor, Processor will promptly inform Controller and will advise Data Subjects to submit their request to the Controller. Controller shall be solely responsible for responding to any Data Subjects' requests. Controller shall reimburse Processor for the costs arising from this assistance.

11.2. Where Customer is entitled to and desires to review Palo Alto Software's compliance with the Data Protection Laws, Customer may request, and Palo Alto Software will provide (subject to obligations of confidentiality) relevant documentation, or any relevant audit report Palo Alto Software might have been issued, as elaborated on under Section 7. If Customer, after having reviewed such audit report(s), still reasonably deems that it requires additional information, Palo Alto Software shall further reasonably assist and make available to Customer, upon a written request and subject to obligations of confidentiality, all other information (excluding legal advice) and/or documentation necessary to demonstrate compliance with this DPA, and the obligations pursuant to Articles 32 to 36 of the GDPR in particular, and shall allow for and contribute to audits, including remote inspections of the Services, by Customer or an auditor mandated by Customer with regard to the Processing of the Customer Data by Palo Alto Software or a sub-processor. Palo Alto Software shall provide the assistance described in this Section 11.2, insofar as in Palo Alto Software's reasonable opinion such audits, and the specific requests of Customer, do not interfere with Palo Alto Software's business operations or cause Palo Alto Software to breach any legal or contractual obligation to which it is subject.

11.3. Customer agrees to pay Palo Alto Software, upon receipt of invoice, a reasonable fee based on the time spent, as well as to account for the materials expended, in relation to Customer exercising its rights under Section 11.2 or Clause 5(f) of the Standard Contractual Clauses.

11.4. Law Enforcement Requests. If a law enforcement agency sends Palo Alto Software a demand for Customer Data (for example, through a subpoena or court order), Palo Alto Software shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Palo Alto Software may provide Customer's basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, Palo Alto Software shall give Customer reasonable notice of the demand so as to allow Customer to seek a protective order or other appropriate remedy, unless Palo Alto Software is legally prohibited from doing so.

11.5. Information Requests. To the extent Palo Alto Software is required under Data Protection Laws, Palo Alto Software shall (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

12. General Provisions

12.1. With respect to updates and changes to this DPA, the terms that apply in the “Amendment; No Waiver” section of “Miscellaneous” in the Agreement shall apply.

12.2. In case of any conflict, this DPA shall take precedence over the Agreement. Where individual provisions of this DPA are invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.

12.3. Palo Alto Software may amend the terms of this DPA, insofar as the revised DPA continues to comply with the relevant requirements of the Data Protection Laws, upon notice to the Customer by email to the primary contact on the account. Any such amendments will automatically become effective 10 days after Palo Alto Software's transmission of each such notice.

12.4. If Palo Alto Software makes a determination that it can no longer meet its obligations in accordance with this DPA, it shall promptly notify Customer of that determination, and cease the Processing of Customer Data or take other reasonable and appropriate steps to remediate the issue.

13. Parties to this DPA

13.1. This DPA is an amendment to and forms part of the Agreement. Controller and Palo Alto Software are each a party to the Agreement are also each a party to this DPA, and to the Standard Contractual Clauses themselves.

13.2. The legal entity agreeing to this DPA as Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Controller.

The Parties are signing this agreement as of the dates indicated below.

Palo Alto Software

Palo Alto Software, Inc.

By:

Name:

Title:

Date:

Customer


By:

Name:

Title:

Date:


Exhibit 1

Standard Contractual Clauses (Processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection,

The respective Customer, as defined in the LivePlan Customer Terms of Service that has entered into the Palo Alto Software Data Processing Agreement to which the Clauses are attached, with the data importer, as indicated below (the “data exporter”)

And

Palo Alto Software, Inc., 44 W Broadway, STE 426, Eugene, OR 97403 (the “data importer”),

each a ‘party’; together ‘the parties’,

have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions
For the purposes of the Clauses:
  1. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    2. any accidental or unauthorised access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction
  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter.

Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.

The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12

Obligation after the termination of personal data-processing services

The parties agree that on the termination of the provision of data-processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses

By entering into the Standard Contractual Clauses, pursuant to Section 9.2 of the DPA, the parties are deemed to have signed this Appendix 1.

A. Data exporter

The data exporter is the respective Customer, as defined in the LivePlan Customer Terms of Service (“Agreement”) that has entered into the Palo Alto Software Data Processing Agreement to which the Clauses are attached, with the data importer, as indicated below.

B. Data importer

The data importer is Palo Alto Software, Inc., a provider of software for business planning and email management.

C. Data subjects

Categories of data subjects set out under Section 4.4(a) of the Palo Alto Software Data Processing Agreement to which the Clauses are attached.

D. Categories of data

Categories of personal data set out under Section 4.4(b) of the Palo Alto Software Data Processing Agreement to which the Clauses are attached.

E. Special categories of data (if appropriate)

The parties do not anticipate the transfer of special categories of data.

F. Processing operations

The processing activities set out under Section 4.4 (c) and (d) of the Palo Alto Software Data Processing Agreement to which the Clauses are attached:

Appendix 2 to the Standard Contractual Clauses

By entering into the Standard Contractual Clauses, pursuant to Section 9.2 of the DPA, the parties are deemed to have signed this Appendix 2.

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Palo Alto Software currently observes the security practices described in this Appendix 2. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, Palo Alto Software may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the protection offered by these practices. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement.

a. Access Control
i. Preventing Unauthorized Product Access

Outsourced processing: Palo Alto Software hosts its Service with outsourced cloud infrastructure providers. Additionally, Palo Alto Software maintains contractual relationships with vendors in order to provide the Service in accordance with our Data Processing Agreement. Palo Alto Software relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.

Physical and environmental security: Palo Alto Software hosts its product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.

Authentication: Palo Alto Software implemented a uniform password policy for its customer products. Customers who interact with the products via the user interface must authenticate before accessing non-public customer data.

Authorization: Customer data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of Palo Alto Software's products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user's permissions against the attributes associated with each data set.

Application Programming Interface (API) access: Public product APIs may be accessed using an API key or through Oauth authorization.

ii. Preventing Unauthorized Product Use

Palo Alto Software implements industry standard access controls and detection capabilities for the internal networks that support its products.

Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.

Network scanning: Palo Alto Software contracts with third-party vulnerability scanners to regularly review the Services for common vulnerabilities and to maintain PCI compliance.

Penetration testing: Palo Alto Software maintains relationships with industry recognized penetration testing service providers for annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.

iii. Limitations of Privilege & Authorization Requirements

Product access: A subset of Palo Alto Software's employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security.

b. Transmission Control

In-transit: Palo Alto Software makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces. Palo Alto Software's HTTPS implementation uses industry standard algorithms and certificates.

At-rest: Palo Alto Software stores user passwords following policies that follow industry standard practices for security.

c. Input Control

Detection: Palo Alto Software designed its infrastructure to log extensive information about system behavior, traffic received, system authentication, and other application requests. Palo Alto Software personnel, including security, operations, and support personnel, are responsive to known incidents.

Response and tracking: Palo Alto Software maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, Palo Alto Software will take appropriate steps to minimize product and Customer damage or unauthorized disclosure.

Communication: If Palo Alto Software becomes aware of unlawful access to Customer data stored within its products, Palo Alto Software will: 1) notify the affected Customers of the incident; 2) provide a description of the steps Palo Alto Software is taking to resolve the incident; and 3) provide status updates to the Customer contact, as Palo Alto Software deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the Customer's contacts in a form Palo Alto Software selects, which may include via email or telephone.

d. Availability Control

Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.

Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.

Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.

Palo Alto Software's products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists Palo Alto Software operations in maintaining and updating the product applications and backend while limiting downtime.