Hexnode's global user conference is set to raise the roof.

Register now

Data Processing Addendum

Security and Privacy

Close Icon

This Data Processing Addendum (“DPA”) is a part of and is hereby integrated into the Hexnode UEM Software as a Service Agreement (the “Agreement”) between Mitsogo, Inc. (“Hexnode”) and our Customer. In furtherance of the obligations set out in the Agreement, Hexnode (as the Data Processor) shall Process certain Personal Data provided by the Customer (as Data Controller) pursuant to the terms herein. This DPA includes the Standard Contractual Clauses adopted by the European Commission set out in the EU General Data Protection Regulation (GDPR), as applicable.

Article Ⅰ

Definitions

For purposes of this DPA, the following capitalized terms shall have the meaning set out in this Article 1. Capitalized terms used, but not defined in this DPA shall have the same meaning as set forth in the Agreement or applicable Data Protection Laws.

  • "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
  • "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • "Authorized Affiliate" means any of Customer's Affiliate (s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between the Customer and the Processor, but has not signed its own Order Form with the Processor and is not a "Customer" as defined under the Agreement.
  • Customer” means the party who has entered into the Agreement opposite Hexnode.
  • Customer Data” is all data provided by Customer or any Authorized Affiliate for Processing in accordance with this DPA. Customer Data includes User Data and all Personal Data.
  • "(Data) Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
  • "(Data) Processor" means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
  • "Data Protection Law" means any applicable legislation, regulation, or other governmental order limiting or restricting the Processing of Customer Data in accordance with this DPA.
  • "Data Subject" means an identified or identifiable natural person.
  • "EEA" means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
  • "European Sub-processor" means a Sub-processor that is physically processing Personal Data in the EEA or Switzerland.
  • "Personal Data" means any personally-identifying information relating to a Data Subject. For the purposes of this DPA, it includes only personal data entered by Customer or its Users into or derived from their use of the Services. Personal Data is a sub-set of Customer Data.
  • "Processing" means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
  • "Security Breach" means a confirmed (1) accidental or unlawful destruction, loss, alteration, or disclosure of Personal Data, or (2) similar incident involving Personal Data for which a Data Processor is required under applicable law to provide notice to the Data Controller.
  • "Standard Contractual Clauses" also referred to the "EU Model Clauses" means the (Standard Contractual Clauses (processors)) or any subsequent version thereof released by the Commission (which will automatically apply). The current Standard Contractual Clauses are located at http://ec.europa.eu/justice/data-protection/international-transfers/files/clauses_for_personal_data_transfer_processors_c2010-593.doc.
  • Sub processor” means an Affiliate of the Processor and third parties engaged by the Processor of its Affiliates to process Customer Data.
  • "Third Country Sub-processor" means any Sub-processor incorporated outside the EEA and outside any country for which the European Commission has published an adequacy decision as published at:
    http://ec.europa.eu/justice/data- protection/international-transfers/adequacy/index_en.htm.
  • User Data” shall mean data provided to Customer by Users including any Personal Data belonging to Data Subjects.
  • Users” mean the end users of Customer’s services for which they have commissioned the Services.
  • GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (also the “General Data Protection Regulation”).

Article Ⅱ

Personal Data Processing

Section 2.01 Scope of this DPA. This DPA shall apply to the extent any Personal Data is Processed by the Data Processor, if and to the extent such Processing is subject to Data Protection Laws

Section 2.02 Customer’s Control & Instructions for Processing. Customer shall, in its use of the Services, provide or arrange for the provision of all Personal Data for Processing in accordance with the requirements of the Data Protection Law. Customer hereby represents and warranties that all instructions it gives for the Processing of Personal Data shall comply with the Data Protection Law. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, and Customer shall indemnify Processor for all costs without limitation that Processor incurs due to Customer’s breach of the foregoing representations and warranties.

Section 2.03 Processor’s Processing of Personal Data. Processor shall only Process any Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes:

  • In accordance with the Agreement and all attachments, exhibits, or other appendices thereto;
  • Processing initiated by Users in their use of the Services; and
  • Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.

Section 2.04 Details of the Processing. Details relating to the Processing of Personal Data by Processor including the duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects whose Personal Data may be Processed under this DPA are further specified in Annex 1 (Details of the Processing) to this DPA.

Article Ⅲ

Personnel Processing Data

Section 3.01 Confidentiality. Data Processor shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Data Processor shall ensure that such confidentiality obligations survive the termination of the Data Processor of the personnel processing data.

Section 3.02 Reliability. Data Processor shall take commercially reasonable steps to ensure the reliability of any personnel engaged in the Processing of Personal Data.

Section 3.03 Limitation of Access. Data Processor shall ensure that access to Personal Data is limited to personnel performing Services in accordance with the agreement.

Article Ⅳ

Technical & Organizational Security Measures

Section 4.01 Security Measures. Data Processor has implemented and will maintain appropriate technical and organizational security measures for the Processing of Personal Data, including the measures specified in this Section to the extent applicable to Data Processor's Processing of Personal Data. These measures are intended to protect Personal Data against accidental or unauthorized loss, destruction, alteration, disclosure or access, and against all other unlawful forms of Processing. Additional measures, and information concerning such measures, including the specific security measures and practices for the particular Services ordered by Customer, may be specified in the Agreement.

Section 4.02 Physical Access Control. Data Processor employs measures designed to prevent unauthorized persons from gaining access to data processing systems in which Personal Data is Processed, such as the use of security personnel, secured buildings and data center premises.

Section 4.03 System Access Control. The following may, among other controls, be applied depending upon the particular Services ordered: authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and logging of access on several levels. For Services hosted at Data Processor: (i) log-ins by Data Processor employees and Sub processors are logged; (ii) logical access to the data centers is restricted and protected by firewall/VLAN; and (iii) intrusion detection systems, centralized logging and alerting, and firewalls are used.

Section 4.04 Data Access Control. Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted, and application access rights are established and enforced. In addition to the access control rules, Data Processor implements an access policy under which Customer controls access to its Services environment and to Personal Data and other data by its authorized personnel.

Section 4.05 Transmission Control. Except as otherwise specified for the Services (including within any applicable service specifications referenced in the Agreement), transmissions of data outside the Services environment are encrypted. Some aspects of the Services may be configurable by Customer to permit access to third-party sites that require unencrypted communications. The content of communications (including sender and recipient addresses) sent through some email or messaging services may not be encrypted. Customer is solely responsible for the results of its decision to use such unencrypted communications or transmissions.

Section 4.06 Input Control. The Personal Data source is under the control of the Customer, and Personal Data integration into the system, is managed by secured file transfer (i.e., via web services or entered into the application) from the Customer. Some features of the Service permit Customers to use unencrypted file transfer protocols. In such cases, Customer is solely responsible for its decision to use such unencrypted field transfer protocols.

Section 4.07 Data Backup. For Services hosted at Data Processor: back-ups are taken on a regular basis; backups are secured using a combination of technical and physical controls, depending on the particular Services.

Section 4.08 Data Segregation. Customer Data received from different customers is logically segregated on Data Processor's systems.

Section 4.09 Confidentiality. All Data Processor employees and Subprocessors that may have access to Personal Data are subject to appropriate confidentiality arrangements.

Article Ⅴ

Data Subject Rights and Requests

Section 5.01 Obligation to Notify. Processor will, to the extent permitted by law, inform Controller of requests from Data Subjects exercising their Data Subject rights (e.g. rectification, deletion and blocking of data) addressed directly to Processor regarding User Data.

Section 5.02 Responses to Data Subjects. If a Data Subject contacts Processor to exercise their rights over their Personal Data, Processor shall first notify Controller of the request. Unless otherwise directed by Controller, Processor shall be responsible to respond to such requests of Data Subjects. Controller will reasonably assist Processor in responding such Data Subject requests.

Section 5.03 Indemnification by Customer. If a Data Subject brings a claim directly against Processor for a violation of their Data Subject rights, and such violation is not the sole and exclusive fault of Processor, Customer will indemnify Processor for any cost, charge, damages, expenses or loss arising from such a claim, to the extent that Processor has notified Customer about the claim and given Customer the opportunity to cooperate with Processor in the defense and settlement of the claim.

Section 5.04 Claims by Customer. Subject to the terms of the Agreement, Customer may claim from Processor amounts paid to a Data Subject for a violation of their Data Subject rights caused by Processor's breach of its obligations under the applicable Data Protection Laws.

Section 5.05 Data Breach. In the event of any unauthorized access or theft of Customer Data, Hexnode shall promptly notify Customer without any undue delay and do all such acts and things as Customer considers reasonably necessary to remedy or mitigate the effects of the data breach. The parties shall coordinate and cooperate in good faith on developing the content of any related public statements or any required notices.

Article Ⅵ

Sub Processors

Hexnode may engage or replace sub processors, as needed, in the fulfilment of its responsibilities and obligations under this DPA. Misogo shall inform Customer of any intended changes concerning the addition or replacement of other Data Processors, thereby giving Customer the opportunity to object to such changes. If Customer objects to a change, Hexnode will not engage such sub-processor or shall replace the sub processor concerned.

  • In case that sub processors are engaged by Hexnode, the contractual agreement with the sub processor must be shaped in a manner that reflect the standards of confidentiality, data protection and data security agreed upon in this Agreement and mandated by the applicable Data Protection Laws. Customer shall have, pursuant to the provisions of the sub processing agreement and notwithstanding the principal liability of Hexnode for acts or omissions of the sub processors, direct auditing and verification rights corresponding to Clause 9 of this Agreement. Hexnode shall provide Customer upon request with information on the main and principal content of the subprocessing agreement and the implementation of measures related to data protection by the subprocessor, where applicable.
  • Hexnode shall be liable to Customer for any acts or omissions of its sub processors, subject to the limitations set out in the Agreement.
  • The current list of Hexnode’s sub processors can be found at https://www.hexnode.com/mobile-device-management/help/list-of-hexnode-sub-processors/

Article Ⅶ

Data Transfers

Customer acknowledges and accepts that in order for Hexnode to fulfill its obligations and responsibilities under this Agreement, the use of Third Country Sub-processors may, at various times, be required.

  • To the extent any transfer of Personal Data by Hexnode or its Sub processors takes place to any country outside the EU/EEA the parties agree that any such transfer will be undertaken through the applicable Data Protection Laws in place and through an adequate level of data protection pursuant to the Standard Contractual Clauses set forth in Annex 2 to this Agreement, or the EU commission is of the opinion that the recipient country provides for an adequate level of data protection
  • If transfers are made pursuant to 8(b)(ii), the following terms shall apply: (i) Customer may exercise its right of audit under Clause 5.1(f) of the Standard Contractual Clauses as set out in Clause 10 of this Agreement; and (ii) Hexnode may appoint Sub processors in accordance with Clause 8 of this Agreement

Article Ⅷ

Auditing of Processing Activities

The Customer may, upon prior notice of 2 weeks and no more often than annually (except audits conducted in response to a Security Breach), request an audit to verify that Hexnode has taken adequate measures to comply with all organizational and technical standards in relation to the Processing of Personal Data pursuant to this DPA. Such audit shall be scheduled only during Hexnode's regular business hours and shall not interfere unreasonable with Hexnode’s business activities while on the premises where Hexnode processes Customer’s data. Any such audit shall be conducted by an auditor appointed by Customer, at the Customer’s own expense, in accordance with Hexnode’s security rules and requirements. Such auditor shall prior to such audit, execute an appropriate confidentiality agreement with Hexnode. Nothing in this DPA will require Hexnode to disclose to the Customer or its independent auditor any information sought for any reason other than the good faith fulfillment of Customer’s obligations under the applicable data protection legislations.

Article Ⅸ

Erasure of Data and Returning of Data Carriers upon Termination

Hexnode shall, after full performance of his contractual obligations or earlier upon request of Customer, return all materials in its possession, all results of the use and processing and all data records relating to the Processing or destroy these in compliance with the applicable Data Protection Law upon prior consent of Customer, and to the extent permitted by its own compliance requirements under the applicable Data Protection Law. Hexnode shall, upon request of Customer, provide a copy of the protocol documenting the deletion. Hexnode shall, after termination of this Agreement and in accordance with the statutory retention periods, retain any documentation which serves as evidence that the data has been processed properly and in compliance with the contractual obligations in place.

Article Ⅹ

Relation to the Agreement

This DPA is entered into as of the Effective Date of the Agreement and shall commence for the Term of the Agreement. The DPA may only be amended by the parties subject to mutual consent. In the event of new Data Protection Laws, either party shall extend its full cooperation in amending this DPA. This DPA shall immediately terminate upon termination of the Agreement. Interpretation of the provisions of this DPA shall be governed by the relevant provisions in the Agreement, including all parts of Section 11 (Miscellaneous). Unless expressly made subordinate by the terms of this DPA, the provisions of the Agreement shall control in the event of any contradiction between such Agreement and this DPA. Neither party shall be responsible or liable for any failure to perform its obligations under this DPA when such failure is due at least in part to any event that is beyond the reasonable control of that party, including acts of God, terrorism, explosions, floods, mechanical breakdowns, strikes, labour unrest, breakdown in essential utilities, etc.

Annex 1

DETAILS OF PROCESSING

Data Subjects

Data Subjects are those individuals to whom Personal Data relates to and are Users who interact using the Service(s).

Categories of Data Processed

Hexnode processes information collected by User devices on behalf of Customer. Such information includes the device’s manufacturing details, operating details, and current statistics like battery level and storage usage. All information is submitted to the Service(s) by Customer through Customer’s account in connection with Customer’s use of the Service(s). Hexnode does not process the details of any communications taking place on any device.

Subject-matter and Nature of the Processing

The personal data processed will be subject to the basic processing activities required for the provision of the Service(s) by Hexnode to the Customer. This includes collecting device information from devices currently in use by Customer’s Users, monitoring such information, and presenting that information in an easy-to-use interface so Customer can actively monitor all device usage across its enterprise. In general, Hexnode does not Process any communications or other potentially sensitive or confidential items located on a User’s device, but rather focuses on the device information. To the extent Personal Data is collected, it will be handled in accordance with the Hexnode Privacy Policy

Purpose of the Processing

Personal Data will be processed for purposes of providing the Service(s) as set out in the Agreement, as further instructed by Customer in its use of the Service(s), and otherwise agreed to in the Hexnode Terms of Service, Privacy Policy, this DPA and any applicable order form.

Duration of Processing

Personal Data will be processed for the duration of the Term of the Agreement.

Annex 2

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

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

The entity identified as “Customer” in the DPA

(the “Data Exporter”)

And

Mitsogo, Inc.

111 Pine St #1225, San Francisco, CA 94111

(the “Data Importer”)

each a “Party”; together the “Parties”,

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

Clause 1

Definitions

For the purposes of the Clauses:

  • ‘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 (1);
  • ’The Data Exporter’ means the controller who transfers the personal data;
  • ‘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;
  • ‘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;
  • ‘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;
  • ‘Technical and Organisational Security Measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the Transfer

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

Clause 3

Third-party Beneficiary Clause

  • The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  • The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  • The data subject can enforce against the 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.

Clause 4

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;
  • 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).

Clause 5

Obligations of the Data Importer

The data importer agrees and warrants:

  • 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;
  • 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;
  • That it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  • It will promptly notify the data exporter about:
    • 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;
    • Any accidental or unauthorised access; and
    • Any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  • 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;
  • 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;
  • 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 aced 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;
  • That, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  • That the processing services by the sub-processor will be carried out in accordance with Clause 11;
  • To send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

  • The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  • If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his 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.
  • 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.

Clause 7

Mediation and Jurisdiction

  • 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:
    • To refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    • To refer the dispute to the courts in the Member State in which the data exporter is established.
  • The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with Supervisory Authorities

  • The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  • The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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).

Clause 9

Governing Law

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

Clause 10

Variation of the Contract

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

Clause 11

Sub-Processing

  • 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 (3). 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.

Clause 12

Obligation after the Termination of Personal Data-processing Services

  • The parties agree that on the termination of the provision of data-processing services, the data importer and the 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

This Appendix forms part of the Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data Exporter: The data exporter is the Customer who is a party to the Agreement, who may send data from the EU to the United States, where Processing of the information collected pursuant to the Services, including storage of all Customer Data, is performed.

Data Importer: The data importer is Mitsogo, Inc. located in California, United States and its affiliates and subsidiaries who receives the data from the data exporter and processes it in the United States in order to provide the Services.

Data Subjects: The personal data transferred concern the following categories of data subjects Mitsogo, Inc. will collect information related to the Customer and some personal information related to Customer’s Users.

Categories of data: The personal data transferred concern the following categories of data ; Data Exporter will send data usage information from devices used for work purposes to the data importer via Data Exporter-controlled devices for processing. For more details about what all data we collect, refer: https://www.hexnode.com/legal/privacy-policy/

Special categories of data (if appropriate): The personal data transferred concern the following special categories of data ; The only special category of data transferred may be the location of the devices, depending on whether the Customer elects to review such data (Mitsogo requires that all Customers have secured acknowledgement from their Users that they will track and monitor their data in and out of devices used for the Customer’s business purposes).

Processing operations: The personal data transferred will be subject to the following basic processing activities which includes performance of services pursuant to EULA, Terms of Use with us. Information is stored and presented in an user interface to Customer.

Appendix 2

To the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties

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

Hexnode exercises a set of layered security services and cryptographic framework that is in accordance with industry standard. Hexnode’s data security architecture is designed to implement preventative, detective, and remediation policies ensuring robust architectural security.

  • Hexnode conducts routine IOS 27001 audits
  • Hexnode is actively pursuing SOC 2 certification and expects to be certified in the near term
  • Penetration testing is conducted every 3 months

Hexnode provides a multi-tenant SaaS solution where the customer data is logically segmented. Dedicated sub-domains are assigned per tenant. Each user has a unique ID and all the data and objects specific to the user are stored in it. Our application log consists of log details, IP details and security related administrative and configuration settings. Individual customer data can be recovered, changed, and removed upon request. Hexnode requires that all Customers warrant that any data collected by the Services is in accordance with local law related to monitoring of employees and other personnel.