Master Subscription Agreement
Updated April 11, 2021
The version of this Master Subscription Agreement in effect as of the Effective Date (defined below) (together with all exhibits, schedules, statements of work and Order Forms incorporated herein, the “Agreement”) governs customer’s (“You”, “Your” or “Customer”) access to and use of any Products of Illumio, Inc. (“We”, “Our” or “Illumio”). If You register for a free trial for any Product, this Agreement will also govern that free trial; provided, however, that the terms and conditions pertaining to support and maintenance, warranties, etc. will be provided on the applicable free trial Order Form. By executing an Order Form that references this Agreement, or by click-accepting a link to this Agreement, You agree to the terms of this Agreement. You represent that You have the authority to bind the applicable entity on behalf of Your organization and its Affiliates.
This Master Subscription Agreement is made and entered into as of the date (the “Effective Date”) of the relevant Order Form by and between Illumio and the party indicated on the Order Form. Certain capitalized terms are defined in Section 17 (Definitions).
Exhibit A
Supplemental Terms – SaaS
The following Supplemental Terms will apply to and govern Customer’s use of the SaaS, as applicable. The terms and conditions herein are incorporated into the Agreement by this reference. Capitalized terms not defined herein will have the meaning set forth in the Agreement.
Customer Obligations
Customer acknowledges and agrees that Customer’s use of the SaaS is dependent upon access to telecommunications and internet services. Customer is solely responsible for acquiring and maintaining all telecommunications and internet services and other hardware and software required to access and use the SaaS, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Illumio will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and internet services.
Customer Data
Customer will provide Customer Data to Illumio in such format and by such method as agreed to by the parties in the Order Form. Customer acknowledges and agrees that Customer and Customer’s Authorized Users’ use of the SaaS are conditioned upon Customer’s provision of Customer Data to Illumio in accordance with the foregoing. To the extent Illumio stores any Customer Data, Illumio shall follow its standard archival procedures for the storage of Customer Data. In the event of any loss or corruption of Customer Data, Illumio shall follow physical, technical and organizational measures designed to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Illumio. With respect to the processing of Customer Data, Illumio will comply with the Privacy supplemental terms under Exhibit F and the Security supplemental terms under Exhibit G.
Exhibit B
Supplemental Terms – On-Premises Software
The following Supplemental Terms will apply to and govern Customer’s use of the On-Premises Software. The terms and conditions herein are incorporated into the Agreement by this reference. Capitalized terms not defined herein will have the meaning set forth in the Agreement.
Customer Obligations
Customer acknowledges and agrees that Customer’s use of the On-Premises Software is dependent upon access to Customer’s internal IT systems as well as external telecommunications and internet services. Customer is solely responsible for acquiring and maintaining its internal IT systems as well as all telecommunications and internet services and other hardware and software required to access and use the On-Premises Software, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Illumio will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from Customer’s internal IT systems, telecommunications or internet services.
Illumio Access
For the purpose of implementing the On-Premises Software on Customer’s servers, Illumio may require access to Customer’s servers and systems where the On-Premises Software is to be installed, and Customer will grant access to Illumio for such limited purpose. Upon completion of the implementation, Customer will be responsible for removing all credentials granted to Illumio in connection with such implementation.
Exhibit C
Supplemental Terms – Maintenance and Support Services
The following Supplemental Terms will apply to and govern Customer’s receipt of Maintenance and Support Services. The terms and conditions herein are incorporated into the Agreement by this reference. Capitalized terms not defined herein will have the meaning set forth in the Agreement.
Maintenance and Support Services
During the Subscription Term and to the extent set forth in the applicable Order Form, Customer will receive 24/7 support for all maintenance releases and Updates via its support website, email and telephone. Customer should reach out to technical support for assistance in identifying and verifying the causes of suspected Errors in the Product and for existing workarounds for identified Errors. Illumio will work directly with a Customer’s designated internal support liaisons. It is Customer’s responsibility to ensure that these individuals are properly trained to use the Product. In order for Illumio to effectively resolve any issues, Customer will provide reasonable access to all necessary personnel to answer relevant questions. On request, Customer will provide access for online diagnostics of the Product during Error diagnosis. Customer will promptly implement all Updates and Error Corrections provided by Illumio to resolve an Error. Illumio’s support obligation with respect to any Product is limited to the current and prior production release for such Product.
Updates
Illumio will notify Customer of maintenance releases and Updates as they are made available. This is done at no additional charge to Illumio’s customers. Illumio has the sole discretion for the timing and availability of any and all maintenance releases and Updates. Updates may be made available for the On-Premises Software by downloading from Illumio support website.
Error Corrections
Illumio will use reasonable efforts to correct any reproducible programming Error in the Product attributable to Illumio with a level of effort commensurate with the severity of the Error. Customer will notify Illumio of such Errors and will provide Illumio with enough information to reproduce the Error(s). Illumio is only responsible for Errors that it can reproduce on Products as delivered to Customer without modification.
Portal
Illumio’s online support portal provides access to releases, Illumio Materials, Documentation, knowledge base articles, trouble-shooting reports and other additional information.
Contacts
Email: [email protected]
Phone: 1-888-631-6354
Response Time
Illumio will provide an initial response to support requests based on designed priority:
Exhibit D
Supplemental Terms – Professional Services
The following Supplemental Terms are effective as of the effective date of the relevant Order Form and are entered into by and between Illumio and Customer and will apply to and govern the Professional Services provided to Customer. The terms and conditions herein are incorporated into the Agreement by this reference. Capitalized terms not defined herein will have the meaning set forth in the Agreement.
Professional Services
Illumio will provide those Professional Services as further defined by the specific Service Descriptions and/or Scope Documents in accordance with the Order Form and these Supplemental Terms. Illumio may use third party contractors to perform Illumio’s duties. Illumio will be responsible for the performance of the Professional Services of such third-party contractors to the same extent as for its own employees. If any Professional Services, in whole or in part, cannot be provided by Illumio due to a Customer issue and Customer fails to provide Illumio with reasonable advance notice, the time spent or allocated by Illumio personnel on such Professional Service will be charged to Customer. Any deliverables or work products provided by Illumio to Customer prior to the execution of an applicable Order Form or a change request are the sole property and Confidential Information of Illumio and shall be governed by the terms of the Agreement. If no Order Form is completed, all work product and deliverables must be returned or deleted and must not be used.
Customer Obligations
Customer will make the necessary arrangements to allow Illumio to perform the Professional Services. Customer shall provide and make available all Customer personnel that Illumio reasonably requires in connection with performance of the Professional Services and as may be further addressed in an applicable Order Form. If the Professional Services are performed at Customer’s site, Customer agrees to provide necessary access to its site including appropriate access to Customer premises, computer systems and other facilities. Customer shall appoint a contact person with the authority to make decisions and to supply Illumio with any necessary or relevant information expeditiously. Customer shall ensure to have all necessary license rights including third party license rights required to allow Illumio to perform the Professional Services.
Change Requests
Either party can request changes to the Professional Service. Illumio is not required to perform under a change request prior to the execution by the parties of the applicable change request.
Personnel
If at any time Customer or Illumio is dissatisfied with the material performance of an Illumio or a Customer project team member, the dissatisfied party shall promptly report such dissatisfaction to the other party in writing and may request a replacement. The other party will use its reasonable discretion in accomplishing any such change (which also, in the case of Illumio, shall be subject to staffing availability).
Fees; Expenses
For performance of the Professional Services, Customer will pay Illumio the applicable Fees in full in advance unless otherwise specified in the applicable Order Form. All prepaid Professional Services must be redeemed within twelve (12) months from the date of invoice. At the end of the twelve (12) month period, any remaining pre-paid Professional Services will expire, and no refund will be provided for any remaining pre-paid unused Fees for Professional Services. Unless otherwise specified in the applicable Order Form, upon invoice from Illumio, Customer will reimburse Illumio for all reasonable expenses incurred by Illumio while performing the Services, including without limitation, transportation services, lodging, meals and out-of-pocket expenses, and third party online and offline research services directly related to the provision of the Professional Services. Illumio will include, upon request, reasonably detailed documentation of all such expenses in excess of US$25 with each related invoice.
Exhibit E
Supplemental Terms – Training Services
The following Supplemental Terms are effective as of the effective date of the relevant Order Form and are entered into by and between Illumio and Customer and will apply to and govern the Training Services provided to Customer. The terms and conditions herein are incorporated into the Agreement by this reference. Capitalized terms not defined herein will have the meaning set forth in the Agreement.
Training Services
Illumio will provide those Training Service(s) as further defined by the specific Service Descriptions and/or Scope Documents in accordance with the Order Form and these Supplemental Terms.
Training Materials
All Training Services materials provided by Illumio for Training Services are the property of Illumio. Customer shall not duplicate such materials and may use the materials solely in conjunction with the Training Services provided by Illumio hereunder.
Delivery
An order for Training Services is valid for a period of twelve (12) months from the date of purchase (the “Delivery Period”). Customer will be invoiced in full for Training Services at the time of submission of the Order Form and expected to pay in accordance with the Agreement. Training Services are non-cancelable and non-refundable. Changes to an Order Form for Training Services will only be accepted in writing. If for any reason Customer wishes to reschedule Training Services, the request must be received at least fourteen (14) business days prior to the scheduled start date for the Training Services. The Fees for the Training Services will be charged for rescheduling requests received fewer than fourteen (14) business days prior to the scheduled start date for the Training Services. In no event will Illumio be liable for nonrefundable travel arrangements in the event of a cancellation or rescheduling. At the end of the applicable Delivery Period, any remaining Fees for unused Training Services shall expire and shall be forfeited. No refunds shall be provided based on any remaining Fees for unused Training Services. All Training Services must be registered and attended during the Delivery Period.
Miscellaneous
For on-site Training Services, Customer shall provide a classroom which will allow sufficient space to accommodate the expected number of students, will support connection to the Illumio virtual lab environment (if applicable), table space for a computer for each student, a blackboard or whiteboard for instructor use, and an LCD projector for presentations and demonstrations. If space such as a conference room is being used as a classroom, it should be located in an area that affords minimal external distractions and noise.
Exhibit F
Supplemental Terms – Privacy
The following Supplemental Terms are effective as of the effective date of the relevant Order Form and are entered into by and between Illumio and Customer and will apply to and govern the processing of personal data on behalf of Customer in connection with the delivery of the Products. Capitalized terms not defined herein will have the meaning set forth in the Agreement, except that terms such as “personal data breach”, “supervisory authority”, “processor”, “data subject”, etc. shall have the definitions specified in the Data Protection Law.
Introduction
Customer intends to send personal data from individuals in the EU (the “EU Personal Data”) as part of the data processed by Illumio on its behalf in connection with the delivery of the Products. With respect to EU Personal Data, Customer is the data controller and Illumio is the data processor. Each party shall strive to comply with their respective obligations with respect to EU Personal Data and thus agrees: (a) Illumio shall only process EU Personal Data upon instructions from Customer, including those in the Agreement and Customer’s configuration of the Products; (b) Illumio’s data centers are located in the United States and Customer hereby instructs Illumio to process EU Personal Data in the United States and in the European Union as needed to deliver the Products or as otherwise instructed by Customer; (c) Illumio shall ensure that persons authorized to process EU Personal Data are committed to a duty of confidentiality; and (d) Illumio shall implement appropriate physical, technical and organizational measures to ensure that the level of security is appropriate to the risk in the performance monitoring and the analytics processing involved in the Products.
Sub-processors
Customer acknowledges and agrees that Illumio may engage third party sub-processors to process EU Personal Data in connection with the provision of the Products. Provided that Customer signs up for notifications on the Illumio support portal, Illumio shall provide prior notice of any new sub-processors. After being notified, Customer will have ten (10) business days to notify Illumio in writing of any reasonable objection it has to the new sub-processor(s). Failure to notify Illumio within this time frame will be deemed approval of the new sub-processor(s). In the event Customer provides reasonable objection, Illumio will use reasonable efforts to make a change in the configuration available to avoid processing of EU Personal Data by such sub-processor. If Illumio is unable to make available such a change within a reasonable period of time, which shall not exceed ninety (90) days, Customer may terminate the applicable Order Form with respect to the affected Products that cannot be provided without use of the rejected sub-processor. In the event Illumio engages a sub-processor to carry out specific processing activities on behalf of Customer, Illumio shall place the same or similar obligations on such sub-processor to require appropriate technical and organizational measures to meet the requirements of the Data Protection Law. Where such additional processor fails to fulfill its data protection obligations, Illumio shall remain fully liable to Customer for the performance of that processor’s obligations.
Assistance
Taking into account the nature of the processing and the role of Illumio as data processor, Illumio will use reasonable efforts to assist Customer in responding to requests by data subjects to exercise data subject rights. Accordingly, Illumio will use reasonable efforts to assist Customer in ensuring compliance with Customer’s obligations under Art 32-36 of the Data Protection Law, including: (a) implementing appropriate physical, technical and organizational measures to ensure a level of security appropriate to the risk; (b) taking steps to ensure that any natural person with access to EU Personal Data does not process such EU Personal Data except on instruction; (c) notifying Customer without undue delay after becoming aware of a personal data breach; (d) assisting Customer in its data protection impact assessments, as appropriate and at Customer’s expense; (e) assisting Customer in its consultation with regulators, as appropriate and at Customer’s expense; and (f) supporting Customer in its role as data controller with respect to lawful requests submitted by data subjects to Customer.
Inspection
Upon receipt of Customer’s written request, Illumio will make available to Customer information reasonably necessary to demonstrate compliance with the obligations in these Supplemental Terms and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer to the extent required by law. Customer shall give Illumio at least ninety (90) days’ prior written notice and promptly reimburse Illumio for expenses incurred in connection with audits conducted by Customer or a third-party auditor beyond those that Illumio already conducts, including but not limited to, time reasonably expended for such audits at Illumio’s then-current professional services rates (made available to Customer upon request). Prior to commencement of work, Illumio and Customer shall mutually agree upon scope, timing, and duration of the work. Customer shall promptly notify Illumio of any non-compliance discovered during the course of any audit; and Illumio will inform Customer if it becomes aware of an instruction by Customer that, in Illumio’s opinion, infringes the Data Protection Law or other applicable data protection law.
Standard Clauses
Customer acknowledges that Illumio is located in the United States and may process EU Personal Data from its offices and data centers located in the United States. To ensure such processing is in accordance with applicable Data Protection Law, the parties hereby enter into the standard contractual clauses below (the “Standard Clauses”). In the event the Standard Clauses become insufficient under Data Protection Law, the parties shall use reasonable efforts to utilize an alternative method of adequacy for transfer.
The Standard Clauses apply to Customers established in the European Economic Area (“EEA”) or Switzerland as the data controller. In the event that Customer’s use of Products results in processing of EU Personal Data of Customer’s affiliates that are also established in the EEA or Switzerland and data controllers, such affiliates shall be deemed “data exporters” under the Standard Clauses, provided that in all cases, Illumio’s aggregate liability to Customer and its affiliates will be subject to the limitations of liability set out below.
Customer shall in its use of the Products only process EU Personal Data in accordance with applicable law and shall not cause Illumio to be in violation of applicable laws. Illumio shall process EU Personal Data in accordance with Customer’s instruction. By contracting with Illumio for the provision of the Products, Customer (through its use and configuration of the Products and/or Services) is directing Illumio to obtain and collect certain EU Personal Data. For purposes of Clause 5(a) of the Standard Clauses, Customer instructs Illumio to: (a) process the EU Personal Data in accordance with the Agreement; and (b) process EU Personal Data initiated by Customer and its Authorized Users in their use of the Products during the Term. The parties agree that Illumio may remove or redact any commercial information and other terms not related to data protection from copies of sub-processor agreements provided to Customer pursuant to Clause 5(j) of the Standard Clauses from such agreements before providing them to Customer; and that such copies will be provided by Illumio only after its receipt of reasonably detailed written request by Customer. The parties agree that Illumio shall provide the certification of deletion of EU Personal Data described in Clause 12(1) of the Standard Clauses only upon receipt of Customer’s written request. The parties agree that all liabilities between Illumio and Customer (including Customer affiliates) will be subject to the terms of the Agreement (including but not limited to limitation of liability provisions), except that no limitations of liability will apply to any liability that Illumio may have to data subjects under the third-party rights provisions of the Standard Clauses. Subject to the preceding sentence, Customer affiliates shall be granted certain rights in relation to Illumio’s obligations reserved for the benefit of Customer hereunder, and data subjects are granted third party rights under the Standard Clauses. All other third-party rights are excluded. The parties hereby agree that these Supplemental Terms supersede any conflicting or inconsistent provisions in the Agreement related to data protection and, in the event of ambiguity, these Supplemental Terms will prevail.
Annex 1
Standard Clauses
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
and
each a “party”; together “the parties”,
have agreed on the following 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:
(a) ‘personal data’, ’special categories of data’, ’process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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
1. 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.
2. 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.
3. The data subject can enforce against the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
4. 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:
(a) 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;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient technical and organizational security measures;
(d) 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, unauthorized 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;
(e) that it will ensure compliance with the security measures;
(f) 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;
(g) to forward any notification received from the data importer or any subprocessor 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;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Exhibit G as a summary description of the security measures, as well as a copy of any contract for subprocessing 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;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor 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
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Exhibit G before processing the personal data transferred;
(d) that 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 unauthorized access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Exhibit G which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor 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 subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. 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.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, 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.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, 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
Subprocessing
1. 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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor’s obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing 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.
4. The data exporter shall keep a list of subprocessing 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
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor 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.
2. The data importer and the subprocessor 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
Exhibit G
Supplemental Terms – Security
The following supplemental terms are effective as of the effective date of the relevant Order Form and are entered into by and between Illumio and Customer and will apply to and govern the Security Program (as defined below). The terms and conditions herein are incorporated into the Agreement by this reference. Capitalized terms not defined herein will have the meaning set forth in the Agreement.
Security
Illumio maintains a formal security program (the “Security Program”), based on reasonable industry best practices, and designed to preserve the confidentiality, integrity and availability of the Platform and Customer Data.
The Security Program addresses (a) management of operational and security risk; (b) technical and administrative security measures; (c) ongoing security training for all employees; and (d) procedures for responding to and recovering from Security Incidents.
Security Incidents
Illumio will promptly notify You in the event of a Security Incident impacting Your Confidential Information or Customer Data, using the primary support contact information You have provided.
Security of the Products
Illumio incorporates security principles in all aspects of the Platform’s design, development and operation. A security assessment (“Penetration Test”) of the product is performed at regular intervals, using independent subject-matter experts.
Information about how Illumio works with the security community to surface and address security findings in the Platform can be found in Illumio’s Responsible Disclosure Policy.
Past versions
Archived April 10, 2021 (July 1, 2020 - April 10, 2021)