This Data Processing Agreement (“DPA”) is by and between Epoch and the Customer. This DPA reflects the Parties’ agreement with respect to the Processing of Customer Personal Data by Epoch in connection with the Epoch Services Agreement entered into by the Parties and hereby forms a part of the Agreement. Capitalized terms defined in this DPA shall have the meanings set forth in this DPA. Capitalized terms not otherwise defined in this DPA shall have the meaning given to them in the Terms. This DPA shall come into force on the date it is last signed by the parties and shall terminate at the end of the Term.
1.1 In this DPA, the following terms shall have the meanings set out below:
“Applicable Law” means applicable Data Protection Laws;
“Contracted Processor” means Epoch or a Sub-processor;
“Controller” means a person or organisation who alone or jointly with others determines the purposes and means of the Processing of Personal Data;
“Customer Personal Data” means any Personal Data that Epoch or a Sub-processor receives, collects, accesses, or otherwise Processes in the provision of the Services to Customer pursuant to the Agreement provided that such Personal Data is electronically submitted by or for Customer to the Services;
“Data Protection Laws” means all applicable laws and regulations of any jurisdiction in respect to privacy, data protection, data security, communications secrecy, breach notification, or the Processing of Personal Data, including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) and applicable Canadian provincial privacy legislation, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”), the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), the UK Data Protection Act 2018, (“UK GDPR), the Swiss Federal Act on Data Protection, in each of the foregoing instances, as applicable to the Processing of Customer Personal Data by a Contracted Processor;
“Data Subject” means an identified or identifiable natural person to which the Personal Data pertains;
“Personal Data” means any information relating to an identified or identifiable natural person, or that is defined as “Personal Data,” “Personal Information,” “Personally Identifiable Information,” “Sensitive Personal Information,” or any similar term by Applicable Law;
“Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or unauthorized access to, any Customer Personal Data;
“Processing” means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
“Processor” means a person or organisation who Processes Personal Data on behalf of the Data Controller;
“Restricted Transfer” means: (i) a transfer of Customer Personal Data from Customer to Contracted Processor; or (ii) an onward transfer of Customer Personal Data from Contracted Processor to a Sub-processor; in each case, where such transfer would be prohibited or restricted by applicable Data Protection Laws, in each case, in the absence of a legal transfer mechanism to be established under this DPA;
“Standard Contractual Clauses” means a legally acceptable version of the Standard Contractual Clauses (as selected by Epoch or a contracted Sub-processor) for the transfer of Personal Data to Processors or Sub-processors established in countries which do not ensure an adequate level of data protection as enacted pursuant to the European Commission’s decision 2021/915 of 4 June 2021; and
“Sub-processor” means any Processor engaged by Epoch who Processes Customer Personal Data in connection with the provision of the Services.
The terms, “Commission”, “Member State”, and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2.1 This DPA applies only to the extent that Epoch Processes Customer Personal Data on behalf of Customer in providing the Services and where such Customer Personal Data is subject to the Data Protection Laws.
2.2 The Parties acknowledge and agree that with regards to the Processing of Customer Personal Data, Customer is the Controller and Epoch is the Processor and Epoch may engage Sub-processors subject to the requirements set forth in Section 6. Customer shall, in its use of the Services, Process Customer Personal Data in accordance with the requirements of Data Protection Laws, including any applicable requirement to provide notice to Data Subjects of the use of Epoch as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Personal Data and how Customer acquired such Customer Personal Data. In particular, Customer shall be solely responsible for obtaining any relevant authorizations, consents and permissions from Data Subjects for the Processing of Customer Personal Information in accordance with this DPA. Epoch will Process Personal Data only as set forth in this DPA and in compliance with Data Protection Laws.
2.3 Each Party hereby certifies that it understands its restrictions and obligations set forth in this DPA and will comply with them.
3.1 Epoch shall:
3.1.1 not Process Customer Personal Data other than on Customer’s written instructions (including instructions provided and Processing initiated by Authorized Users) unless Processing is required by Applicable Law to which Epoch is subject; and
3.1.2 promptly inform Customer if, in Epoch’s opinion, an instruction from Customer concerning the Processing of Customer Personal Data violates Data Protection Laws.
3.2 Customer hereby instructs Epoch to Process Customer Personal Data (including instructions provided and Processing initiated by Authorized Users in their use of the Service) and to transfer Customer Personal Data to any country or territory for the provision of the Services in accordance with this DPA.
3.3 Exhibit A to this DPA sets out certain information regarding the Processing of the Customer Personal Data pursuant to the Agreement and this DPA. Nothing in Exhibit A confers any right or imposes any obligation on any party to this DPA.
3.4 Epoch shall not:
3.4.1 Sell Customer Personal Data;
3.4.2 otherwise Process Customer Personal Data for any purpose other than for the specific purposes set forth in this DPA and the Agreement; or
3.4.3 attempt to link, identify, or otherwise create a relationship between Customer Personal Data and non-Personal Data or any other data without the express authorization of Customer or as otherwise authorized in this DPA or the Agreement.
For purposes of this Section 3.4, “Sell” shall have the meaning set forth in the CCPA.
4.1 Epoch shall (i) take commercially reasonable steps to ensure the reliability of the Epoch personnel it authorizes to Process Customer Personal Data (“Authorized Personnel”), ensuring in each case that access to Customer Personal Data is limited to those Authorized Personnel who need to know and/or access the Customer Personal Data to provide the Services, and (ii) ensure that all Authorized Personnel are bound by confidentiality obligations (whether by contract or under Applicable Law) as strict as those in the Agreement in respect of the Processing of Customer Personal Data.
5.1 Epoch shall, in relation to the Customer Personal Data, implement appropriate technical and organizational measures to provide a level of security appropriate to the types of Customer Personal Data being Processed by Epoch and the risk to applicable Data Subjects in the event of unauthorized use or disclosure of such Customer Personal Data. In assessing the appropriate level of security, Epoch shall take account of the risks that are presented by Processing, including from a Personal Data Breach in respect to the Customer Personal Data.
6.1 Customer authorizes Epoch to appoint (and permit each Sub-processor appointed in accordance with this Section 6 to appoint) Sub-processors in accordance with this Section 6. Customer hereby consents to Epoch’s use of its current Sub-processors which are set forth as follows:
6.2 Epoch shall not transfer Customer Personal Data to a new Sub-processor without providing prior written notice to Customer. Customer may object to Epoch’s use of a new Sub-processor by notifying Epoch promptly in writing within thirty (30) days after receipt of Epoch’s notice in accordance with the mechanism set out in Section 6.2. If Customer objects to a new Sub-processor, as permitted in the preceding sentence, Epoch will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor. If Epoch is unable to make available such change within a reasonable time, which shall not exceed thirty (30) days, Customer may terminate the applicable order form with respect only to those Services which cannot be provided by Epoch without the use of the objected-to new Sub-processor by providing written notice to Epoch.
6.3 With respect to each Sub-processor, Epoch shall:
6.3.1 before the Sub-processor first Processes Customer Personal Data, carry out commercially reasonable due diligence to determine that the Sub-processor is capable of providing the level of protection for Customer Personal Data required by this DPA;
6.3.2 enter into an agreement with such Sub-processor (including in electronic form) that is consistent with the terms of this DPA in respect to such Sub-processor’s Processing of Personal Data;
6.3.3 if an arrangement with a Sub-processor involves a Restricted Transfer, utilize a legal transfer mechanism under Applicable Law (such as the Standard Contractual Clauses, approved Binding Corporate Rules or any other transfer mechanism that may be approved by applicable Supervisory Authorities from time to time); and
6.3.4 provide to Customer for review, copies of Epoch’s agreements with its Sub-processors (which may be redacted to remove confidential commercial information) as Customer may request in writing from time to time.
6.4 Epoch shall be liable for the acts and omissions of its Sub-processors to the same extent Epoch would be liable if performing the services of each Sub-processor directly under the terms of this DPA and the Agreement.
7.1 Considering the nature of the Processing of the Customer Personal Data by the Contracted Processors, Epoch will assist Customer, by appropriate technical and organizational measures, insofar as reasonably possible, in the fulfilment of Customer’s obligations to respond to requests by Data Subjects (or their representatives) for exercising their rights under Data Protection Laws (such as rights to access, correct, or delete Personal Data).
7.2 Epoch shall to the extent legally permitted:
7.2.1 promptly notify Customer if Epoch receives (i) a request from a Data Subject under any Data Protection Laws in respect of Customer Personal Data (including requests of Data Subjects that may be communicated to Epoch by its Sub-processors), or (ii) a Data Subject complaint made to Epoch regarding the Processing of Customer Personal Data (including Data Subject complaints that may be communicated to Epoch by its Sub-processors) (collectively, the matters in items (i) and (ii) hereinafter referred to as “Data Subject Requests”); and
7.2.2 Epoch will not respond to any Data Subject Requests except on the documented instructions of Customer or as required by Applicable Law; and
7.2.3 to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Epoch shall, upon Customer’s request, provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Epoch is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Epoch’s provision of such assistance.
8.1 Epoch shall notify Customer without undue delay (and in any event within seventy-two (72) hours) upon Epoch becoming aware of a Personal Data Breach affecting Customer Personal Data (including any Personal Data Breach for which Epoch receives notice from a Sub-processor), providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under Data Protection Laws. Any notification by Epoch of any Personal Data Breach shall not be interpreted or construed as an admission of fault or liability by Epoch.
8.2 Epoch shall use reasonable efforts to identify the cause of any Personal Data Breach affecting Customer Personal Data and take those steps as Epoch deems necessary and reasonable to remediate the cause of such a Personal Data Breach affecting Customer Personal Data to the extent the remediation is within Epoch’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Authorized Users.
9.1 Epoch shall provide Customer (at Customer’s sole expense) with commercially reasonable assistance with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which are required under Data Protection Laws, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to Epoch, and, in each case, to the extent Customer does not otherwise have access to the relevant information.
10.1 Subject to Section 10.3, if Customer does not provide Epoch written notice under Section 10.2, Epoch shall promptly and in any event within twenty (20) business days of the date of cessation of any Services involving the Processing of Customer Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of the Customer Personal Data held by or under the control of Epoch and/or any of its Sub-processors.
10.2 Subject to Section 10.3, Customer may in its absolute discretion by written notice to Epoch within ten (10) business days of the Cessation Date require Epoch to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in a format supported by the Services; and (b) delete and procure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor pursuant to this DPA. Epoch shall comply with any such written request within twenty (20) business days of the Cessation Date.
10.3 Each Contracted Processor may retain Customer Personal Data to the extent required by Applicable Law and for such period as required by Applicable Law and always provided that Epoch shall comply with the obligations of this DPA in respect of all such Customer Personal Data and shall only Process such Customer Personal Data as necessary for the purpose(s) specified in the Applicable Law requiring its storage and for no other purpose except as otherwise provide in this Section 10.3. In addition, each Contracted Processor may retain Customer Personal Data that is contained in archival records made by such Contracted Processors’ back-up systems pursuant to such Contracted Processor’s standard back-up and disaster recovery procedures, provided that such Customer Personal Data shall be deleted when the corresponding archival records are deleted in accordance with such Contracted Processor’s standard deletion schedule for back-up and disaster recovery records.
10.4 Upon written request from Customer, Epoch shall provide written certification to Customer that Epoch has fully complied with this Section 10 within twenty (20) business days of the Cessation Date.
11.1 Epoch shall make available to Customer (provided that Customer is not a competitor of Epoch) upon written request all reasonable information necessary to demonstrate compliance with the obligations set forth in this DPA. Epoch shall allow for and comply with audits by Customer or an auditor (provided that both Customer and the selected auditor are not competitors of Epoch) mandated by Customer that are relevant to the Processing of the Customer Personal Data by the Contracted Processors. Any information provided by Epoch (or any other Contracted Processor) to Customer, or to any auditor selected by Customer in connection with an audit, shall be Epoch’s Proprietary Information and shall be protected by Customer (and Customer’s auditor) in accordance with the Proprietary Information provisions of the Agreement.
11.2 Customer shall give Epoch reasonable notice (and no less than 30 days’ notice) of any audit or inspection to be conducted under Section 11.1 and shall avoid (and shall ensure that each of its mandated auditors avoids) causing any damage, injury or disruption to the Contracted Processors' systems or operations in the course of such an audit or inspection. If Customer elects to use a third-party auditor, such third-party auditor shall be required to enter into a non-disclosure agreement with Epoch. Epoch need not give access to its premises for the purposes of such an audit or inspection:
11.2.1 to any individual unless he or she produces reasonable evidence of identity and authority;
11.2.2 outside normal business hours, unless the audit or inspection needs to be conducted on an emergency basis and Customer and Epoch have agreed that this is the case before audits outside those hours begin; or
11.2.3 for the purposes of more than one audit or inspection, in respect of Epoch or any Sub-processor, in any calendar year, except for any additional audits or inspections which Customer is required or requested to carry out by Data Protection Laws, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any relevant country or territory.
11.3 Customer shall reimburse Epoch for any time expended by Epoch or its Sub-processors for any such audit at the Epoch’s then-current professional services rates, which shall be made available to Customer upon request. Before the start of any such audit, Customer and Epoch shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, considering the resources expended by Epoch, or its Sub-processors. Customer acknowledges and agrees that any audit of any Sub-processor is subject to the agreement of such Sub-processor, which is outside of Epoch’s control, and which may be denied by the applicable Sub-processor in such Sub-processor’s sole discretion. Customer shall promptly notify Epoch with information regarding any non-compliance discovered during any audit.
12.1 To the extent that the Processing of Customer Personal Data by Epoch or a Sub-processor involves a Restricted Transfer, such transfer shall be done in accordance with a legal transfer mechanism under Applicable Law (such as the Standard Contractual Clauses, approved Binding Corporate Rules or any other transfer mechanism that may be approved by applicable Supervisory Authorities from time to time).
13.1 Without prejudice to the mediation, jurisdiction and governing law provisions of the Standard Contractual Clauses (to the extent the Standard Contractual Clauses are applicable to a Contracted Processor), this DPA shall be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein. Notwithstanding the generality of the foregoing, if Customer’s principal location is in the United States, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the federal laws of the United States applicable therein.
13.2 Order of precedence
13.2.1 Nothing in this DPA reduces Epoch's obligations under the Agreement in relation to the protection of Customer Personal Data or permits Epoch to Process (or permit the Processing of) Customer Personal Data in a manner which is prohibited by the Agreement.
13.2.2 In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses (to the extent the Standard Contractual Clauses are applicable to a Sub-processor), the Standard Contractual Clauses shall prevail. For greater certainty, to the extent this DPA specifies rules in respect to the appointment of Sub-processors, the conduct of audits, and the certification of deletions, such rules also apply in relation to the Standard Contractual Clauses.
13.2.3 With regard to the subject matter of this DPA, in the event of any conflict or inconsistency between the provisions of this DPA and other provisions in the Agreement, or any other agreements between the parties, the provisions of this DPA shall prevail to the extent of the conflict or inconsistency.
13.2.4 To the extent the Standard Contractual Clauses are applicable between Customer and Epoch, Customer shall be the data exporter and Epoch shall be the data importer, and to the extent the Standard Contractual Clauses require a description of the types of Customer Personal Information to be Processed, the types of Processing to be performed on the Customer Personal Information, the purpose of the Processing to be performed on the Customer Personal Information, the duration of the Processing of the Customer Personal Information and any other relevant information about the Processing to be performed on Customer Personal Information, the information set forth in Attachment A to this DPA is deemed to be added to the Standard Contractual Clauses (mutatis mutandis).
13.3 Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in full force and effect. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained in this DPA.
This Appendix A includes certain details of the Processing of Customer Personal Data.
A. Subject matter and duration of the Processing of Customer Personal Data
B. The nature and purpose of the Processing of Customer Personal Data
C. The types of Customer Personal Data to be Processed
D. The categories of Data Subjects to whom the Customer Personal Data relates
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least in accordance with the Data Processing Agreement above, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(h) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(i) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(j) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(k) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
(a) Where the data exporter is established in an EU Member State:]The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(f) The Parties agree that those shall be the courts of Ireland.
(g) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(h) The Parties agree to submit themselves to the jurisdiction of such courts.
Contact person’s name, position and contact details:
Activities relevant to the data transferred under these Clauses:
Signature and date:
Role (controller/processor): Controller
1. Name: Epoch Software Canada Inc.
Address: 151 Charles St West Kitchener, ON N2J 1H6
Contact person’s name, position and contact details: Jade Choy, Co-founder and CEO, email@example.com
Activities relevant to the data transferred under these Clauses: see DPA
Signature and date:
Role (controller/processor): Processor
Categories of data subjects whose personal data is transferred
Data exporter and data exporter employees.
Categories of personal data transferred
Data exporter and data exporter employee work addresses, email addresses, team/department names, first and last names, office locations, profile photos
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
The frequency of the transfer will be determined by the data exporter.
Nature of the processing
Data importer will process data as necessary to allow data exporter to access and use the Epoch platform and services.
Purpose(s) of the data transfer and further processing
The data will be used and further processed to allow data importer to meet its service obligations to the data exporter.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The data will be retained indefinitely during the term of the Agreement unless a request for deletion comes from the data exporter. After the end of the provision of the processing services, data will be deleted or retuned in accordance with the provisions of section 8.5 herein.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Any onward transfers of data subjects data may be transferred to subprocessors for the purposes of competently and securely running the data importer's services and meeting its service obligations to the data exporter.
Identify the competent supervisory authority/ies in accordance with Clause 13
Irish Data Protection Authority, Ireland
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
Epoch: Information Security Management - 2021 Letter
This document describes Epoch’s security controls.
If there are any questions, please email us: firstname.lastname@example.org
The CTO is responsible for overseeing Information Security. The role includes ensuring the adoption of best practices for product development with security and performance considerations, establishing and iterating on software engineering methodologies that align with customer needs, supporting the development and compliance of security policies & procedures to protect customer data and user details, leading the product and engineering teams to adhere to the organizational practices, monitoring the performance of the platform and controlling internal access to information on a need-to-know basis to uphold the principles of maintaining confidentiality, integrity and availability of information.
User access to internal vendor systems is handled on a need-to-know basis to limit the privileges granted with supporting requirements and documentation for explicit business reasoning and manager approval. Access requests and approvals are currently tracked on an internal spreadsheet hosted on the company's Google Drive (accessible only by the CTO), and we are in the process of evaluating and migrating to the Okta Identity Cloud to manage workforce identity needs.
Privileged user accounts are only able to authenticate and access the production environment (hosted and managed by Heroku) via two-factor authentication using Authy on their mobile device. Access to EPOCH API endpoints is possible only with internally generated API tokens that privileged users are assigned and managed through Lastpass based on the principles of secure access management within our small team.
All user accounts are reviewed every month to ensure elevated access is only granted to individuals who require it. The timeline for remediating identified issues is within 24 hours and would involve notifying and coordinating with the relevant user.
We use Cloudflare to manage web application security and infrastructure configurations to segregate customer subdomains in our multi-tenet instance of the product hosted on Heroku. We have a server domain (epoch-prod.herokuapp.com) in addition to the landing page that is hosted by Squarespace (epochapp.com). Firewall rule changes are managed and tracked on Cloudflare (with access to Audit Log functionality) and require approval from the CTO before going into production.
The platform would allow users to login using OAuth 2.0 providers (specifically: Google, Slack) and using SAML 2.0 for companies that use external identity providers such as Okta.
Our incident response plan is a lightweight adaptation of PagerDuty's industry leading incident response process (https://response.pagerduty.com/). It is reviewed and tested for updates and iterations twice a year.
Our workspace is access-controlled, all work areas are monitored with security cameras and all entrances/exits are equipped with security alarms. Authorized staff need to badge in with their ID to enter the workspace area, and all work areas are isolated from public-facing shared spaces. The building is home to regional offices for numerous establishments (Communitech, D2L, Fairfax Innovation Labs, TD Innovation Labs, Velocity Garage etc) as well as numerous start-ups (Pallete etc), and was previously the office for Google in Waterloo. The security features and facilities are inherited from them. Access is provided only to authorized staff, and access requests are handled by the reception/front desk of the building. Approvals are processed only after reconciliation and consent with the corresponding company/organization that the staff member would belong to. All staff members are mandated to non-trivially password-protect and lock their electronic devices (laptops, computers, phones, tablets) any time they leave their desk area.
We strive to use the latest versions and patches for all components and devices through a quarterly audit for patch management. The lightweight process entails 4 phases: assessment, identification and evaluation, authorization and testing, deployment.
In phase 1, software and hardware assets across the organization are identified along with their stakeholders and roles to determine currently installed patches and gaps in patch levels. Effort is made to ensure standard system configurations across components and devices to establish consistency of patch levels.
In phase 2, the information about components and devices in the organization is used to determine whether particular pending/new patches are applicable (as notified by vendors and trusted third-party sources that publish patch updates for risk management). Upon identification of applicable patches, all associated documentation is reviewed (including pre-requisites, known issues, functionality impact, workarounds, removal guidelines) to evaluate the severity of the patch and which systems it would need to be deployed to and in what timeframe. This is done based on impact, existing mitigations/controls, whether the vulnerability being patched is actively being exploited, how big the attack vector and users affected would be & the information at-risk. The prioritization is reviewed by at least one other technical colleague.
In phase 3, a prioritized patch is brought up for approval by the CTO, to authorize its deployment based on factors like if there are preferable workarounds in the short-term that mitigate the risk and schedule the patch for eventual deployment to minimize business and customer disruption. Deployment is done in staged rollouts across staging environments (identical to production) with rollback mechanisms is place to test and verify any compatibility issues before proceeding.
In phase 4, a verified patch that is ready for production deployment is rolled out and communicated to users and stakeholders with suggested steps for continued product usage or to report problems. A post-implementation review is conducted shortly after to identify any issues that may have arose, collate system weaknesses and operationalize learnings to iterate on.
Furthermore, for the web application and database that are hosted and managed by Heroku - system configuration and consistency is maintained through standard, up-to-date images, configuration management software, and by replacing systems with updated deployments. Systems are deployed using up-to-date images that are updated with configuration changes and security updates before deployment. Once deployed, existing systems are decommissioned and replaced with up-to-date systems.
The Epoch platform is accessible only to authenticated and authorized users belonging to the company associated with the instance of the application, signified by the subdomain. All user data is associated with a company and is not visible or accessible to users who don’t belong to that company (verified by the email subdomain). Passwords and authentication tokens for user accounts are hashed and salted using SHA-256. All API requests that manipulate data are required to have authorization tokens to identify which user it originates from. All new features and enhancements to the platform would extend the existing architectural patterns to maintain scalability and security.
Automated and encrypted backups are performed daily through our database provider (Heroku Postgres) with access to rollback functionality. All backup files that are taken using Heroku PGBackups are stored in an encrypted S3 bucket in the US region. For admin-level users at a company, we would be able to provide processed data backups directly to the user upon request through TLS and HTTPS in an access-controlled interface through our web platform with mandatory user authentication and authorization.
We strive to adhere to industry security and hardening practices - all passwords are changed every quarter and any unnecessary components are disabled. Furthermore, Heroku's infrastructure provides DDoS mitigation techniques including TCP Syn cookies and connection rate limiting in addition to maintaining multiple backbone connections and internal bandwidth capacity that exceeds the Internet carrier supplied bandwidth. They work closely with their ecosystem providers to quickly respond to events and enable advanced DDoS mitigation controls when needed. Managed firewalls prevent IP, MAC, and ARP spoofing on the network and between virtual hosts to ensure spoofing is not possible. Packet sniffing is prevented by infrastructure including the hypervisor which will not deliver traffic to an interface which it is not addressed to. Heroku utilizes application isolation, operating system restrictions, and encrypted connections to further ensure risk is mitigated at all levels. Port scanning is prohibited and every reported instance is investigated by our infrastructure provider. When port scans are detected, they are stopped and access is blocked.
Yes, security logs are created to identify use of critical system components. All logs are backed up and stored on a separate cloud location from the application server, and trusted log management and analysis tools are leveraged (Loggly, Papertrail). Logging is modelled after the guidelines suggested by the OWASP Security Logging project, and includes security events, who (username), what (event type), and where (IP address, server name) needed for forensics and information evaluation.
All data is encrypted at rest and in transit and is stored in secure access-controlled environments provided by Heroku. The hashing methodology leveraged is AES-256 (block-level storage encryption). Keys are managed by Amazon, and individual volume keys are stable for the lifetime of the volume. Access to database credentials is administered by the CTO and controlled through the Heroku Postgres Admin Interface which allows granular permissioning for every approved user. All traffic that contains Slack data and communicates with the APIs uses TLS and is encrypted with Full SSL using SHA 2 ECDSA.
The controller has authorised the use of the following sub-processors: