SilkRoad Customer Data Processing and GDPR Addendum

This Data Processing and GDPR Addendum (“DPA”) provides a set of supplemental obligations that SilkRoad Technology, Inc. (“SilkRoad”) hereby assumes as part of the agreement (the “Agreement”) with each SilkRoad customer (the “Customer”) who has purchased and maintains an active subscription to use SilkRoad’s software as a service (SAAS) products (the “Hosted Services”). This DPA shall be effective on the later of (i) the effective date of the Agreement, and (ii) 25 May 2018 (“Effective Date”). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. In the event that SilkRoad and Customer have entered into a separate signed agreement document with regard to compliance with the EU Data Protection Law (defined below), this DPA shall not apply; provided, that at a minimum, SilkRoad shall in any case be bound by its obligations set forth in this DPA.

1. Definitions

“Affiliate” has the meaning set forth in the Agreement.

“Agreement” means the agreement between Customer and SilkRoad for the provision of the SilkRoad Hosted Service to Customer.

“Customer Data” has the meaning set forth in the Agreement.

“Customer Personal Data” means any Customer Data that is Personal Data.

“Data Protection Laws” means all data protection and privacy laws applicable to the respective party in its role in the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

“Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.

“Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.

“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council 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) (“GDPR”), and repealing Directive 95/46/EC.

“EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.

“Hosted Service” has the meaning set forth in the Agreement.

“Model Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission.

“Personal Data” means any information relating to an identified or identifiable natural person.

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

“Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C (2016) 4176 of 12 July 2016 (as may be amended, superseded or replaced).

“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.

“Security Incident” means any unauthorized or unlawful breach of security in the Hosted Service that leads to the unauthorized disclosure of or access to Customer Personal Data.

“Sub-processor” means any Data Processor engaged by SilkRoad or its Affiliates to assist in fulfilling its obligations with respect to providing the SilkRoad Hosted Service pursuant to the Agreement or this DPA. Sub-processors may include third parties or SilkRoad’s Affiliates.

2. Scope and Applicability of this DPA

2.1 This DPA applies where and only to the extent that SilkRoad Processes Customer Personal Data on behalf of Customer as Data Processor in the course of providing Hosted Service pursuant to the Agreement.

2.2 Notwithstanding expiry or termination of the Agreement, this DPA will remain in effect until, and will automatically expire upon, deletion of all Customer Personal Data by SilkRoad as described in this DPA or termination of the Agreement.

3. Roles and Scope of Processing

3.1 Role of the Parties. As between SilkRoad and Customer, Customer is either the Data Controller of Customer Personal Data, or in the case that Customer is acting on behalf of a third party Data Controller, then a Data Processor, and SilkRoad shall process Customer Personal Data only as a Data Processor acting on behalf of Customer.

3.2 Customer Processing of Personal Data. Customer agrees that (i) it will comply with its obligations under Data Protection Laws in respect of its processing of Personal Data, including any obligations specific to its role as a Data Controller and/or Data Processor (as applicable), and any processing instructions it issues to SilkRoad; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary under Data Protection Laws for SilkRoad to process Personal Data and provide the SilkRoad Hosted Service pursuant to the Agreement and this DPA. If Customer is itself a Data Processor, Customer warrants to SilkRoad that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of SilkRoad as another Data Processor, have been authorized by the relevant Data Controller to the extent required under applicable law.

3.3 Customer Instructions. SilkRoad will process Customer Personal Data only for the purposes described in this DPA and only in accordance with Customer’s lawful instructions documented in this DPA, the Agreement, and via Customer’s use of the Hosted Service, and in order for SilkRoad to fulfil its obligations to provide Hosted Service under the Agreement (“Customer Instructions”). The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to SilkRoad in relation to the processing of Customer Personal Data. Additional processing outside the scope of these Customer Instructions (if any) will require prior written agreement between Customer and SilkRoad.

3.4 Details of Data Processing.

(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Personal Data.
(b) Purpose: The purpose of the data processing under this DPA is the provision of the SilkRoad Hosted Service to the Customer and the performance of SilkRoad’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties in mutually executed written form.
(c) Duration: As between SilkRoad and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
(d) Nature of the processing: SilkRoad provides the Hosted Service, which may process Customer Personal Data upon the instruction of the Customer in accordance with the terms of this DPA, the Agreement, and Customer Instructions.

3.5 Access or Use. SilkRoad will not access or use Customer Personal Data, except as necessary to maintain or provide the SilkRoad Hosted Service and its obligations under the Agreement, this DPA, or as necessary to comply with the law or binding order of a governmental body.

4. Subprocessing

4.1 Authorized Sub-processors. Customer agrees that SilkRoad may engage Sub-processors to provide data centers to host Customer Data and the Hosted Services application software, disaster recovery, and backup related services on its behalf. SilkRoad will provide a list of the Sub-processors currently engaged by it on Customer’s written request.

4.2 Sub-processor Obligations. SilkRoad will: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Customer Personal Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause SilkRoad to breach any of its obligations under this DPA

5. Security

5.1 Security Measures. SilkRoad shall implement and maintain appropriate technical and organizational security measures to preserve the security and confidentiality of the Customer Personal Data processed by the Hosted Service.

5.2 Security Incident Response. Upon confirming a Security Incident, SilkRoad shall: (i) notify Customer without undue delay, and in any event such notification shall, where feasible, occur no later than 72 hours from SilkRoad confirming the Security Incident; (ii) provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer; and (iii) SilkRoad shall promptly take reasonable steps to contain, investigate, and mitigate any Security Incident. SilkRoad’s notification of or response to a Security Incident under this Section 5.2 (Security Incident Response) will not be construed as an acknowledgment by SilkRoad of any fault or liability with respect to the Security Incident.

6. Customer Responsibilities.

Customer agrees that SilkRoad has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of SilkRoad’s systems (for example, offline or on-premise storage on Customer’s computers).

7. International Transfers

SilkRoad hosts Customer Personal Data in the region selected by Customer as specified in the Agreement, or the applicable Order Form), provided, however, that Customer’s Users may access and use the Hosted Service via the Internet from any international location where they connect to the Internet, and in connection with such usage the SilkRoad Hosted Services may transfer Customer Personal Data to the applicable Users at their respective locations.

8. Return or Deletion of Customer Data

8.1 Deletion by Customer. SilkRoad will cooperate with Customer to enable deletion of Customer Personal Data in accordance with the procedures set forth in 9.1 below.

8.2 Deletion on Termination. For 90 days following termination or expiration of the Agreement, Customer may retrieve any remaining Customer Personal Data in accordance with the Agreement. Thereafter, Customer hereby instructs SilkRoad to automatically delete all remaining Customer Personal Data . SilkRoad shall not be required to delete Customer Personal Data to the extent (i) SilkRoad is required by applicable law or order of a governmental or regulatory body to retain some or all of the Customer Personal Data; and/or (ii), Customer Personal Data it has archived on back-up systems, which Customer Personal Data SilkRoad shall securely isolate and protect from any further processing, except to the extent required by applicable law.

9. Cooperation

9.1 The SilkRoad Hosted Service provides Customer with a number of controls that Customer may use to retrieve, correct, or delete Customer Personal Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to access the relevant Customer Personal Data within the SilkRoad Hosted Service using existing controls or otherwise, SilkRoad shall offer consulting services to Customer at time and materials rates to reasonably assist Customer in responding to any requests from individuals or applicable data protection authorities relating to the processing of Customer Personal Data under the Agreement. In the event that any request from individuals or applicable data protection authorities is made directly to SilkRoad, SilkRoad shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so, and instead, after being notified by SilkRoad, Customer shall respond. If SilkRoad is required to respond to such a request, SilkRoad will promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.

9.2 Customer acknowledges that SilkRoad is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each Data Processor and/or Data Controller on behalf of which SilkRoad is acting and, where applicable, of such Data Processor’s or Data Controller’s local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, Customer will, where requested, provide such information to SilkRoad.

9.3 Security Reports and Audits. SilkRoad shall provide written responses on a confidential basis to reasonable requests for information made by Customer related to its Processing of Customer Personal Data related to information security and audit questionnaires necessary to confirm SilkRoad’s compliance with this DPA, provided that Customer shall not exercise this right more than once per year, and any such request shall not be made in a manner so as to interfere with SilkRoad business.

9.4 In the event the Customer is required to carry out data protection impact assessments under EU Data Protection Law, SilkRoad will (at Customer’s request and expense) no more than once annually, provide reasonably requested information regarding the SilkRoad Hosted Service to enable the Customer to carry out such data protection impact assessments.

10. Relationship with the Agreement

10.1 Precedence. The parties agree that DPA shall replace any existing DPA the parties may have previously entered into in connection with the SilkRoad Hosted Service. Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict in connection with its subject matter.

10.2 Liability. The liability of each party and each party’s Affiliates under this DPA shall be subject to the exclusions and limitations of liability set out in the Agreement.

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

10.4 Termination. This DPA will continue for so long as SilkRoad is hosting, storing and/or processing Customer Personal Data in connection with the Agreement.