Data Processing Addendum
The Data Processing Addendum will not apply where 42Gears act as Data Controller. This Data Processing Addendum applies when Customer Data is processed by 42Gears. In this context 42Gears will act as a “processor” to Customer who may act either as a “Controller” or “Processor” with respect to the Customer Data (as each term is defined below in accordance with GDPR)
- AGREEMENT: means the agreement between 42Gears and the Customer whether in any written or electronic form to provide Service to the Customers.
- DATA CONTROLLER: means natural or legal entity that determines the purpose and means for processing data.
- DATA BREACH: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of services to Customers by 42Gears.
- PERSONAL DATA: Personal data is the information relating to an individual who can be directly or indirectly identified from that data. Identification can be through reference to the information itself, or in conjunction with any other information in our possession or likely to come into such possession. Further, it includes Customer Data which 42Gears may process on behalf of Customer via the Service, as more particularly described in this DPA.
- DATA PROCESSOR: means any natural or legal entity who processes the personal data on behalf of the data controller.
- SERVICES: any cloud services or customer support provided by 42Gears to the Customers pursuant to this Agreement.
- SUB-PROCESSOR: means any third-party service provider that 42Gears may engage to process personal data of its customers pursuant to this Agreement.
- "ISO 27001 CERTIFICATION” means ISO/IEC 27001:2019 certification or a comparable certification for the Processor Services.
- "SECURITY INCIDENT" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Customer Data on systems managed or otherwise controlled by 42Gears.
- "SENSITIVE DATA" means (a) social security number, tax file number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, credit, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; or (f) other information that falls within the definition of "special categories of data" under applicable Data Protection Laws.
- “CALIFORNIA CONSUMER PRIVACY ACT OF 2018” or “CCPA” means Assembly Bill 375 of the California House of Representatives, an act to add Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code, relating to privacy and approved by the California Governor on June 28, 2018; Standard Contractual Clauses: means ANNEXURE 1, attached to and forming part of this Data Processing Addendum pursuant to the European Commission Decision of 5th January 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
2. Objectives of Data Processing:
- 42Gears undertakes to process personal data on behalf of the Customer in accordance with the conditions laid down in this Data Processing Addendum. The processing will be executed exclusively within the framework of the Addendum, and for all such purposes as may be agreed to subsequently.
- 42Gears shall refrain from making use of the personal data for any purpose other than as specified by the Customer. The Customer will inform 42Gears of any such purposes which are not contemplated in this Data Processing Addendum.
- All personal data processed on behalf of the Customer shall remain the property of the Customer and/or the relevant Data subjects.
- 42Gears shall not, on its behalf, make any unilateral decisions regarding the processing of the personal data other than the purpose as set out in the Agreement.
3. 42Gears obligations to process Personal Data:
- 42Gears shall warrant compliance with the applicable data protection laws and regulations governing the protection of personal data, including the General Data Protection Regulations which take effect from 25May, 2018.
- 42Gears shall furnish to the Customer promptly on request, with details regarding the measures it has adopted to comply with its obligations under this Data Processing Addendum. The obligations arising under the terms of this Data Processing Addendum also apply to each Sub-Processor who processes personal data under the instruction of 42Gears. Without limiting the generality of the foregoing, to the extent the California Consumer Privacy Act of 2018, as amended, Cal. Civ. Code § 1798.100 et.seq. (“CCPA”), applies to any Personal Data, such Personal Data will be disclosed by Customer to 42Gears for a ‘business purpose’ and 42Gears will act as Customer’s ‘service provider’, as such terms are defined under CCPA. 42Gears will not retain, use or disclose Personal Data for a commercial or any other purpose other than for the specific purpose of providing the Services, as further described in the Agreement, or as otherwise permitted by the CCPA.
4. Allocation of Responsibility:
- 42Gears shall only be responsible for processing the personal data under this Data Processing Addendum , in accordance with the Customer’s instructions and under the (ultimate) responsibility of the Customer. 42Gears is explicitly not responsible for other processing of personal data, including but not limited to processing for purposes that are not reported by the Customer to 42Gears.
- Customer represents and warrants that it has express consent and/or a legal basis to process the relevant personal data. Furthermore, the Customer represents and warrants that the contents are not unlawful and do not infringe. This document is proprietary and confidential. No part of this document may be disclosed in any manner to a third party without the prior written consent of 42Gears Mobility Systems. any rights of a third party. In this context, the Customer indemnifies 42Gears of all claims and actions of third parties related to the processing of personal data without express consent and/or legal basis under this Data Processing Addendum.
- Customer will not provide (or cause to be provided) any Sensitive Data to 42Gears for processing under this Agreement, and 42Gears will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data.
- 42Gears is authorised within the framework of the Agreement to engage Sub-processors to provide certain services on its behalf. Customer consents to 42Gears engaging Sub-processors to process Personal Data under the Agreement. Upon written request of the Customer, 42Gears shall inform the Customer about the third party/parties engaged.
- 42Gears shall in any event ensure that the Sub-processor will be obliged to agree in writing to the similar substantial duties that are agreed between the Customer and 42Gears as set out in this Data Processing Addendum.
- 42Gears agrees (i) to provide prior notice to Customer of any new appointment or a replacement of a Sub- processor to process Personal Data and (ii) if Customer objects to a new Sub-processor on reasonable data protection grounds within ten (10) days of receiving the notice, to discuss the Customer those concerns in good faith with a view to achieve a resolution.
6. Duty to Report Security Incident:
- In the event of a data breach or a security incident, 42Gears shall, to the best of its ability, notify the Customer thereof without undue delay, after which the Customer shall determine whether or not to inform the Data subjects and/or the relevant regulatory authority(ies). This duty to report applies irrespective of the impact of the leak.
- 42Gears will endeavour that the furnished information is complete, correct and accurate.
- Under the GDPR or under any applicable law and/or regulation, 42Gears shall cooperate in notifying the relevant authorities and/or Data subjects. However, 42Gears obligation to notify or respond is not an acknowledgment by 42Gears of any fault or liability with respect to the Security incident.
- Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means 42Gears selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on 42Gears SureMDM console and secure transmission at all times.
- 42Gears will endeavour to take adequate technical and organisational measures against loss or any form of unlawful processing (such as unauthorised disclosure, deterioration, alteration or disclosure of personal data) in connection with the processing of personal data under this Data Processing Addendum.
- 42Gears will endeavour to ensure that the security measures are of a reasonable level, having regard to the sensitivity of the personal data and the costs related to the security measures.
- The Customer will assure its own security measures for secure transfer of personal data to 42Gears. 42Gears will adopt appropriate security measures to ensure data security while transferring the personal data back to the Customer including the security measures mentioned in Appendix 2.
- To evaluate and ensure the continued effectiveness of the security measures, 42Gears will maintain the ISO- 27001 Certification and restricts its personnel from processing Personal Data without authorization (unless required to so by applicable law) and will ensure that any person authorized by 42Gears to Process Personal Data is subject to an obligation of confidentiality.
8. Response to Data Subjects:
Where a Data subject submits a request to 42Gears to exercise any of its rights under the General Data Protection Regulation or any applicable law/regulation, 42Gears, taking into account the nature of processing, will use commercially reasonable efforts to forward such request to the Customer and the request will then be dealt with by the Customer, 42Gears will not respond directly to such request without obtaining the prior approval of the Customer. If 42Gears is required to respond to the Data Subject Request directly, it will promptly notify the Customer of such request, unless 42Gears is prohibited to do so under any applicable law/regulation. To the extent legally permitted, Customer shall be responsible for any costs arising from 42Gears provision of such assistance.
9. Data Centre and International Transfer:
9.1 42Gears uses AWS (Amazon Web Services) to host the services. Information about the locations of the data centre is available at https://aws.amazon.com/security/?nc1=f_cc or as updated by Amazon from time to time.
9.2 Subject to Section 9.3, Customer acknowledges that 42Gears may transfer and process Customer Data to and in the United States and anywhere else in the world where 42Gears, its Affiliates or its Sub-processors maintain data processing operations. 42Gears shall at all times ensure that such transfers are made in compliance with the requirements of applicable Data Protection Laws and this DPA.
9.3 Australian Data. To the extent that 42Gears is a recipient of Customer Data protected by the Australian Privacy Law, the parties acknowledge and agree that 42Gears may transfer such Customer Data outside of Australia as permitted by the terms agreed upon by the parties and subject to 42Gears complying with this DPA and the Australian Privacy Law.
9.4 European Data transfers. To the extent that 42Gears is a recipient of Customer Data protected by EU Data Protection Laws ("EU Data") in a country outside of Europe that is not recognized as providing an adequate level of protection for personal data (as described in applicable EU Data Protection Law), the parties agree to the following:
(a) SCCs: 42Gears agrees to abide by and process EU Data in compliance with the SCCs in the form set out in Annexure 1. For the purposes of the descriptions in the SCCs, 42Gears agrees that it is the "data importer" and Customer is the "data exporter" (notwithstanding that Customer may itself be an entity located outside Europe).
9.5 Alternative transfer mechanism. To the extent 42Gears adopts an alternative data export mechanism (including any new version of or successor to the SCCs ) for the transfer of EU Data not described in this DPA ("Alternative Transfer Mechanism"), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable EU Data Protection Law and extends to the countries to which EU Data is transferred). In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer EU Data (within the meaning of applicable EU Data Protection Law), 42Gears may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of EU Data.
9.6 South African data transfers. To the extent that 42Gears is a recipient of Customer Data protected by POPIA in a country outside South Africa that does not provide for an adequate level of protection for personal data similar to the protections under POPIA, 42Gears shall process the Customer Data as permitted by the terms agreed upon by the parties and subject to 42Gears complying with this DPA and the data protection principles in POPIA.
Customer agrees its right to audit 42Gears may be satisfied by 42Gears presenting the valid certifications, reports or extracts from independent bodies, including external or internal auditors, IT security department, data protection or quality auditors or others mutually agreed to third parties or certification by way of an IT security or data protection audit.
- To the extent it is not possible to satisfy an audit obligation mandated by applicable Data Protection Laws and Regulations through such attestations, reports or extracts, the Customer may conduct an audit by assigning an independent third party who shall be obliged to observe confidentiality in this regard. Any such audit will follow 42Gears reasonable security requirements and will not interfere unreasonably with 42Gears business activities.
- Customer shall bear all the audit cost and not audit 42Gears process more than once annually
- 42Gears may object to any third-party audit, if the auditor is, in 42Gears's reasonable opinion, not suitably qualified or independent, a competitor of 42Gears or otherwise manifestly unsuitable. Any such objection by 42Gears will require the Customer to appoint another auditor or conduct the audit itself. Nothing in this Data Protection Addendum will require 42Gears either to disclose Customer or its third-party auditor or to allow Customer or its third-party auditor to access:
- any data of any other Customer of 42Gears and its any entity
- 42Gears internal accounting or financial information.
- any trade secret of 42Gears
- Any information that, in 42Gears reasonable opinion, could (A) compromise the security of any 42Gears systems or premises or (B) cause 42Gears to breach any of its obligations under the Data Protection Legislation or its security and/or privacy obligations to Customer or any third party; or
- Any information that Customer or its third-party auditor seeks to access for any reason other than the good faith fulfilment of Customer's obligations under the Data Protection Legislation.
11. Duration and Termination:
- This Data Processing Addendum is entered into for the duration set out in the Agreement, and in the absence thereof, for the duration of the cooperation between the Parties.
- The Data Processing Addendum may not be terminated in the interim.
- This Data Processing Addendum may only be amended by the Parties subject to mutual consent.
- 42Gears shall provide its full cooperation in amending and adjusting this Data Processing Addendum in the event of new legislation.
12. Limitation of Liability:
- Each Party’s and all of its Affiliates liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and 42Gears, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
- Any claims made against 42Gears or its Affiliates under or in connection with this DPA (including, where applicable, the SCC’s) shall be brought solely by the Customer entity that is 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.
13. Customer Requests:
42Gears shall comply with the applicable data protection laws and regulations. For the avoidance of doubt we will:
- Provide support to Customer at their request to assess the impact of our services on their privacy (for example, through assisting Customer with a Data Protection Impact Assessment at Customer’s cost);
- Provide support to customers in responding to requests from data subjects to exercise their rights under the EU General Data Protection Regulation (GDPR).
14. Return or Deletion of Data :
Upon termination or expiration of the Agreement, 42Gears shall (at Customer's option) delete or return to Customer all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which 42Gears shall securely isolate, protect from any further processing and eventually delete in accordance with 42Gears deletion policies, except to the extent required by applicable law.
42Gears has documented its processing and publishes this in the privacy notice. This can be found on the 42Gears website or provided at your request.
16. Miscellaneous :
In the case of any inconsistency between documents and the appendices thereto, the following order of priority will apply:
- This Data Processing Addendum.
- The Agreement.
- Additional conditions, where applicable.
STANDARD CONTRACTUAL CLAUSES
For the purposes of the Clauses:
(a). ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive
95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
(b). ‘the data exporter’ means the controller who transfers the personal data.
(c). ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; (d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e). ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established.
(f). ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
DETAILS OF THE TRANSFER
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
THIRD-PARTY BENEFICIARY CLAUSE
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and
- 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 sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
OBLIGATIONS OF THE DATA EXPORTER
The data exporter agrees and warrants:
- 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.
- that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses; (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract.
- 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;
- that it will ensure compliance with the security measures.
- 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.
- to forward any notification received from the data importer or any sub-processor 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.
- 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 sub-processing 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;
- that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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
- that it will ensure compliance with Clause 4(a) to (i).
OBLIGATIONS OF THE DATA IMPORTER
The data importer agrees and warrants:
(a). to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract.
(b). that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c). that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred.
(d). that it will promptly notify the data exporter about:
(i). any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation.
(ii). any accidental or unauthorised access; and
(iii). any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so.
(e). to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the
supervisory authority with regard to the processing of the data transferred.
(f). at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter, or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g). to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub- processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter.
(h). that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent.
(i). that the processing services by the sub-processor will be carried out in accordance with Clause 11.
(j). to promptly send a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
1. 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. 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 sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.
3. 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
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:
(a). to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority.
(b). to refer the dispute to the courts in the Member State in which the data exporter is established.
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.
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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
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 Data Exporter’s Member State
VARIATION OF THE CONTRACT
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
- The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing 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 sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA-PROCESSING SERVICES
- The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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
The Data Exporter is a customer of 42Gears Products or Services as part of its Unified Endpoint Management solution business.
The Data Importer is 42Gears Mobility Systems Private Limited and its affiliates and subsidiaries, an enterprise mobility solution.
The Personal Data transferred concern the following categories of Data Subjects:
42Gears may process any data inputted by authorised users of our Products or Services. Primarily, this will relate to living individuals who are:
- users who are authorised by Data Exporter to use the services
- employees, agents, contractors, and contacts of the Data Exporter
- prospects, customers and clients, business partners and vendors of the Data Exporter ● advisors and
professional experts of the Data Exporter
- employees, agents, contractors, and contacts of the Data Exporter’s prospects, customers and clients, business partners, vendor, advisors and professional experts.
CATEGORIES OF DATA
The Personal Data transferred concern the following categories of data:
42Gears may Process any data inputted by authorised users at the time of login in our Products or Services. For further details regarding what all data we collect, please refer 42Gears Privacy Notice https://www.42gears.com/privacy-policy/
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
Description of the technical and organisational security measures implemented by 42Gears in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Our security practices are described in our Security and Compliance Standards available at https://www.42gears.com/security-and-compliance/ (or at such other URL as may be notified to the Data Exporter from time to time).
Further, 42Gears exercises a set of layered security services and cryptographic framework that is in accordance with industry standard.
- 42Gears conducts routine ISO 2700: 2013 audits
- 42Gears is actively pursuing SOC 2 certification and expects to be certified in the near term
- Penetration tests are conducted regularly, and vulnerabilities are remedied promptly
- 42Gears conduct mandatory security awareness training which includes handling and securing of confidential information and sensitive information such as personally identifiable information, financial account information consistent with applicable law, and periodic security awareness communications that focus on end-user awareness.
- 42Gears employs logging and monitoring technology to help detect and prevent unauthorized access attempts to its networks and production systems. Also, monitoring includes a review of changes affecting systems' handling authentication, authorization, and auditing; privileged access to 42Gears's production systems.
- 42Gears regularly performs vulnerability scans and addresses detected vulnerabilities in accordance with their risk. 42Gears products are also subject to periodic vulnerability assessment and penetration testing.
- 42Gears performs periodic backups of production file systems and databases according to a defined schedule and maintains a formal disaster recovery plan for the production cloud data centre, including regular testing.
- Third-party service providers or vendors (collectively, "Suppliers' ') with access to 42Gears's confidential information are subject to risk assessments to gauge the sensitivity of 42Gears's information being shared. Suppliers will be expected to comply with any pertinent contract terms relating to the security of 42Gears data, as well as any applicable 42Gears policies or procedures. Periodically, 42Gears may ask a Supplier to re- evaluate its security posture to help ensure compliance.
APPENDIX 3 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Standard Contractual Clauses (the 'Clauses').
This Appendix sets out the parties' interpretation of their respective obligations under specific terms of the Clauses. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.
For the purposes of this Appendix, "DPA" means the Data Processing Agreement in place between Customer and 42Gears and to which these Clauses are incorporated, and "Agreement" shall have the meaning given to it in the DPA.
CLAUSE 4(h) AND 8: DISCLOSURE OF THESE CLAUSES
- Data exporter agrees that these Clauses constitute data importer's Confidential Information as that term is defined in the Agreement and may not be disclosed by data exporter to any third party without data importer's prior written consent unless permitted pursuant to Agreement. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.
CLAUSES 5(a) AND 5(b): SUSPENSION OF DATA TRANSFERS AND TERMINATION
- The parties acknowledge that a data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.
- The parties acknowledge that if data importer cannot provide such compliance in accordance with Clause 5(a) and Clause 5(b) for whatever reason, the data importer 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 the affected parts of the Services in accordance with the terms of the Agreement.
- If the data exporter intends to suspend the transfer of personal data and/or terminate the affected parts of the Services, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the noncompliance (“Cure Period”).
- If required, the parties shall reasonably cooperate with each other during the Cure Period to agree what additional safeguards or other measures, if any, may be reasonably required to ensure the data importer's compliance with the Clauses and applicable data protection law.
- If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend and/or terminate the affected part of the Services in accordance with the provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by the data exporter prior to suspension or termination). The data exporter shall not be required to provide such notice in instances where it considers there is a material risk of harm to data subjects or their personal data.
CLAUSE 5(f): AUDIT
- Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in the 'Audit' section of the DPA.
CLAUSE 5(f): DISCLOSURE OF SUBPROCESSOR AGREEMENTS
- The parties acknowledge the obligation of the data importer to promptly send a copy of any onward sub processor agreement it concludes under the Clauses to the data exporter.
- The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
- Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably requires in connection with such subprocessing agreement to data exporter.
CLAUSE 6: LIABILITY
- Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In no event shall any party limit its liability with respect to any data subject rights under these Clauses.
CLAUSE 11: ONWARD SUBPROCESSING
- The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward subprocessing by the data importer.
- Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out in the 'Sub-Processors' section of the DPA.
CLAUSE 12: OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA-PROCESSING SERVICES
- Data importer agrees that the data exporter will fulfil its obligation to return or destroy all the personal data on the termination of the provision of data-processing services by complying with the 'Deletion or Return of Personal Data' section of the DPA.
CLAUSE 13: OBLIGATIONS OF THE DATA IMPORTER IN CASE OF ACCESS BY PUBLIC AUTHORITIES
- 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.
- 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.
- 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.).
- 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.
13.2 Review of legality and data minimisation
- 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.
- 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.
- 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.
APPENDIX 4- JURISDICTION-SPECIFIC TERMS
- Objection to Sub-processors. Customers may object in writing to 42Gears’s appointment of a new Sub- processor within five (5) calendar days of receiving notice in accordance with Section 5.1 of DPA, provided that such objection is based on reasonable grounds relating to data protection. In such an event, the parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, 42Gears will, at its sole discretion, either not appoint such Sub-processor, or permit Customer to suspend or terminate the affected Service in accordance with the termination provisions in the Agreement without liability to either party (but without prejudice to any fees incurred by Customer prior to suspension or termination).
- Government data access requests. As a matter of general practice, 42Gears does not voluntarily provide government agencies or authorities (including law enforcement) with access to or information about 42Gears accounts (including Customer Data). If 42Gears receives a compulsory request (whether through a subpoena, court order, search warrant, or other valid legal process) from any government agency or authority (including law enforcement) for access to or information about a 42Gears account (including Customer Data) belonging to a Customer whose primary contact information indicates the Customer is located in Europe, 42Gears shall: (i) inform the government agency that 42Gears is a processor of the data; (ii) attempt to redirect the agency to request the data directly from Customer; and (iii) notify Customer via email sent to Customer’s primary contact email address of the request to allow Customer to seek a protective order or other appropriate remedy. As part of this effort, 42Gears may provide Customer’s primary and billing contact information to the agency. 42Gears shall not be required to comply with this paragraph 2 if it is legally prohibited from doing so, or it has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual, public safety, or 42Gears’s Site, or Service(s).
1.For the avoidance of doubt, when European Union law ceases to apply to the UK upon the UK's withdrawal from the European Union and until such time as the UK is deemed to provide adequate protection for personal data (within the meaning of applicable EU Data Protection Law) then to the extend 42Gears processes (or causes to be processed) any Customer Data protected by EU Data Protection Law applicable to EEA and Switzerland in the United Kingdom, 42Gears shall process such Customer Data in compliance with the SCCs or any applicable Alternative Transfer Mechanism implemented in accordance with Section 9.4 and 9.5 of this DPA.
- Except as described otherwise, the definitions of: “controller” includes “Business”; "processor" includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under CCPA.
- For this “California” section of Annex 4 only, “42Gears Services” means the suite of unified endpoint management tools and products available for 42Gears Customers to use, including without limitation, SureMDM, SureFox etc. and other related support services made available through the 42Gears, as may be further described in the App and/or on the 42Gears Site.
For this “California” section of Annex 4 only, “Permitted Purposes” shall include processing Customer Data only for the purposes described in this DPA and in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, as otherwise agreed in writing, including, without limitation, in the Agreement, or as otherwise may be permitted for “service providers” under the CCPA.
42Gears’s obligations regarding data subject requests, as described in Section 8 of this DPA, apply to Consumer’s rights under the CCPA.
Notwithstanding any use restriction contained elsewhere in this DPA, 42Gears shall process Customer Data only to perform the 42Gears Services, for the Permitted Purposes and/or in accordance with Customer’s documented lawful instructions, except where otherwise required by applicable law.
42Gears may de-identify or aggregate Customer Data as part of performing the Service specified in this DPA and the Agreement.
Where Sub-processors process the personal data of Customer contacts, 42Gears takes steps to ensure that such Sub-processors are Service Providers under the CCPA with whom 42Gears has entered into a written contract that includes terms substantially similar to this DPA or are otherwise exempt from the CCPA’s definition of “sale”. 42Gears conducts appropriate due diligence on its Sub-processors.
- 42Gears takes steps to ensure that 42Gears's Sub-processors, as described in Section 5 (Sub-processing) of the DPA, are third parties under PIPEDA, with whom 42Gears has entered into a written contract that includes terms substantially similar to this DPA. 42Gears conducts appropriate due diligence on its Sub- processors.
- 42Gears will implement technical and organizational measures as set forth in Section 7 (Security) of the DPA.
Last Updated: September 24, 2021