This Data Protection Addendum (“Addendum“) effective May 25, 2018 forms part of the existing agreement, including any renewal thereof and as amended by the parties from time to time, (collectively, the “Principal Agreement“) between: (i) Newforma, Inc., or the applicable Newforma Affiliate (as defined and identified below), contracting with the Customer (as defined in the Principal Agreement and executing this Addendum below) acting on its own behalf and as agent for each Newforma Affiliate for purposes of this Addendum (collectively, “Newforma“); and (ii) the Customer (as defined in the Principal Agreement and executing this Addendum below) acting on its own behalf and as agent for each Customer Affiliate (collectively, “Customer“).
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “Applicable Laws” means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to any other Data Protection Laws;
1.1.2 “Customer Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.3 “Customer Group Member” means Customer or any Customer Affiliate;
1.1.4 “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the Principal Agreement;
1.1.5 “Contracted Processor” means Newforma or a Subprocessor;
1.1.6 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 “EEA” means the European Economic Area;
1.1.8 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.9 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.10 “Newforma Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Newforma, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. Newforma Affiliates currently include Newforma EMEA Ltd, Newforma UK Ltd, Newforma France SARL, Newforma Germany GmbH, Newforma Canada ULC, Newforma Asia Pacific Pte Ltd and Newforma Australia Pte Ltd.
1.1.11 “Restricted Transfer” means:
184.108.40.206 a transfer of Customer Personal Data from any Customer Group Member to a Contracted Processor; or
220.127.116.11 an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 5.4.3 or 11 below; For the avoidance of doubt, where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from within the European Union to a country (such as Switzerland) or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;
1.1.12 “Services” means the software, services and other activities to be supplied to, or carried out by, or on behalf of, Newforma for Customer Group Members pursuant to the Principal Agreement;
1.1.13 “Standard Contractual Clauses” means the contractual clauses as adopted from time to time by the European Commission; and
1.1.14 “Subprocessor” means any person (including any third party and any Newforma Affiliate, but excluding an employee of Newforma or any of its sub-contractors) appointed by or on behalf of Newforma or any Newforma Affiliate to Process Personal Data on behalf of any Customer Group Member in connection with the Principal Agreement.
1.2 The terms, “Commission“, “Controller“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Processing of Customer Personal Data
2.1 Newforma and each Newforma Affiliate shall not Process Customer Personal Data other than on the relevant Customer Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Newforma or the relevant Newforma Affiliate shall to the extent permitted by Applicable Laws inform the relevant Customer Group Member of that legal requirement before the relevant Processing of that Personal Data.
2.2 Each Customer Group Member hereby:
2.2.1 instructs Newforma and each Newforma Affiliate (and authorizes Newforma and each Newforma Affiliate to instruct each Subprocessor) to:
18.104.22.168 Process Customer Personal Data; and
22.214.171.124 in particular, transfer Customer Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
2.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 2.2.1 on behalf of each relevant Customer Affiliate.
2.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to Newforma from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.
3. Newforma and Newforma Affiliate Personnel
Newforma and each Newforma Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know or access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Newforma and each Newforma Affiliate shall in relation to the Customer Personal Data implement appropriate and commercially reasonable technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Newforma and each Newforma Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1 Each Customer Group Member authorizes Newforma and each Newforma Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any restrictions in the Principal Agreement.
5.2 Newforma and each Newforma Affiliate may continue to use those Subprocessors already engaged by Newforma or any Newforma Affiliate as of the effective date of this Addendum, subject to Newforma and each Newforma Affiliate in each case as soon as practicable meeting the obligations set out in section 5.4.
5.3 Newforma shall give Customer prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within ten (10) calendar days of receipt of that notice, Customer notifies Newforma in writing of any objections (on reasonable grounds) to the proposed appointment, then neither Newforma nor any Newforma Affiliate shall appoint (or disclose any Customer Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by any Customer Group Member and Customer has been provided with a reasonable written explanation of the steps taken.
5.4 With respect to each Subprocessor, Newforma or the relevant Newforma Affiliate shall:
5.4.1 before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with section 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by the Principal Agreement;
5.4.2 ensure that the arrangement between on the one hand (a) Newforma, or (b) the relevant Newforma Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
5.4.3 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) Newforma, or (b) the relevant Newforma Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Customer Personal Data ensure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Customer Group Member(s) (and Customer shall ensure that each Customer Affiliate party to any such Standard Contractual Clauses co-operates with their population and execution); and
5.4.4 provide to Customer for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove any information not relevant to the requirements of this Addendum) as Customer may request from time to time.
5.5 Newforma and each Newforma Affiliate shall ensure that each Subprocessor performs the obligations under sections 2.1, 3, 4, 6.1, 7.2, 8 and 9.1, as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Newforma.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing and solely in the context of the Services, Newforma and each Newforma Affiliate shall assist each Customer Group Member by implementing appropriate technical and organizational measures, insofar as this is commercially reasonable, for the fulfilment of the Customer Group Members’ obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Newforma shall:
6.2.1 promptly notify Customer if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
6.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer or the relevant Customer Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Newforma shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1 Newforma shall notify Customer without undue delay upon Newforma or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow each Customer Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Newforma shall co-operate with Customer and each Customer Group Member and take such commercially reasonable steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Newforma and each Newforma Affiliate shall provide reasonable assistance to each Customer Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which are required of any Customer Group Member by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, 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, the Contracted Processors.
9. Deletion or return of Customer Personal Data
9.1 Subject to sections 9.2 and 9.3, Newforma and each Newforma Affiliate shall promptly and in any event within 60 days of the date of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date“), delete and ensure the deletion of all copies of those Customer Personal Data.
9.2 Subject to section 9.3, Customer may in its absolute discretion by written notice to Newforma within 10 days of the Cessation Date require Newforma and each Newforma Affiliate to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to Newforma; and (b) delete and ensure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor. Newforma and each Newforma Affiliate shall comply with any such written request within 60 days of the Cessation Date.
9.3 Each Contracted Processor may retain Customer Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Newforma and each Newforma Affiliate shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10. Audit rights
10.1 Subject to sections 10.2-10.3, Newforma and each Newforma Affiliate shall make available to each Customer Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Customer Group Member or an auditor mandated by any Customer Group Member in relation to the Processing of the Customer Personal Data by the Contracted Processors.
10.2 A Customer Group Member may only use a third party auditor for the purposes of section 10.1 if the auditor is approved by Newforma, which approval shall not be unreasonably withheld, delayed or conditioned.
10.3 Customer or the relevant Customer Affiliate undertaking an audit shall give Newforma or the relevant Newforma Affiliate reasonable notice of any audit or inspection to be conducted under section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
10.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;
10.3.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer or the relevant Customer Affiliate undertaking an audit has given notice to Newforma or the relevant Newforma Affiliate that this is the case before attendance outside those hours begins; or
10.3.3 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any rolling twelve (12) month period.
11. Restricted Transfers
11.1 Each Customer Group Member hereby agrees that Newforma or the relevant Newforma Affiliate can process and transfer personal data outside the European Economic Area (“EEA”), including in and to the United States. Newforma shall together with each other Newforma Affiliate provide for appropriate and commercially reasonable safeguards to ensure that such processing and transferring outside the EEA takes place in accordance with applicable EU data protection laws. Such safeguards may in particular consist of the Privacy Shield and/or Standard Contractual Clauses as adopted from time to time by the European Commission. Each Customer Group Member, as a data exporter, hereby authorizes Newforma and each Newforma Affiliate to enter into Standard Contractual Clauses with any other Newforma Affiliate, as data importer, on such Customer Group Member’s behalf and in Customer Group Member’s name.
11.2 The Standard Contractual Clauses shall come into effect under section 11.1 on the later of:
11.2.1 the data exporter becoming a party to them;
11.2.2 the data importer becoming a party to them; and
11.2.3 commencement of the relevant Restricted Transfer.
11.3 Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12. Order of Precedence
12.1 Nothing in this Addendum reduces Newforma’s or any Newforma Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Newforma or any Newforma Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
12.2 Subject to section 12.1, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
12.3 Notices under this Addendum shall be in writing and shall be delivered by hand, mailed via certified mail, or delivered by commercial courier service. Notices shall be deemed effective when received or upon attempted delivery, in the event that delivery is refused. Notices to Newforma shall be delivered or sent to 1750 Elm Street, 9th Floor, Manchester, NH 03104 USA Attn: Legal. Notices to Customer shall be delivered or sent to Customer’s primary billing address on file with Newforma.
ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
Scope, Nature, and Purpose of the Processing
The personal data processed and transferred shall be subject to the following basic processing activities:
The personal data is processed and transferred in the context of the provision of contracted Services to Customer and Customer’s end users by Newforma and its affiliates. Depending on the characteristics of the specific Services provided, processing operations may consist in:
1. data storage and processing in Newforma’s data centers, related to the provision of the Services;
2. hosting secured internet portals for presentation of Service related information;
3. creating invoices and related billing information;
4. providing technical support;
5. providing implementation services and training; and
6. other processing operations as will generally be performed in the process of providing project information management as a Service.
Duration of the Processing
Newforma shall stop processing and transferring Customer’s personal data after the end of the provision of the relevant Services within a reasonable period to implement this termination of processing and transferring.
Categories of Data Subjects
Newforma will process and transfer personal data of Customer’s contact persons and end users who are using Newforma’s Services.
Types of Personal Data
The personal data processed or transferred concerns the following categories of data:
1. With regard to Customer’s contact persons, categories may include: name, title, gender and business contact details (business address, telephone number, email address, etc.);
2. With regard to end users using the Services, depending on the characteristics of the specific Services provided and to the extent relating to an identified or identifiable natural person, categories may include:
a. Names, gender, department, business contact details (email, phone, mobile, fax), primary office location and other contact details to the extent provided by the end user;
b. User names and other login or credential details;
c. Call detail records and other communication details related to outbound and inbound communication (telephone numbers, IP addresses and other communication identifiers, date, time and duration of the communication and other data generally processed for the provision of communication services);
d. uploaded files, messages and notes;
e. Voicemail and call recordings; and
f. Video recordings, and training attendee details (names, phone number and email address when provided, IP address of attendee computer).