COMPANY / LEGAL / CLOUD TERMS OF USE

v6-10/27/2020

DATA PROCESSING ADDENDUM

This Data Processing Addendum together with its Exhibits and Appendices (“DPA”) forms part of the terms of service, master service agreement or other written or electronic agreement between Arm and Customer setting out the terms and conditions for the supply of device management services (including associated or ancillary services, as from time to time agreed upon under such agreement) from Arm (“Service Agreement”) to reflect the Parties’ agreement with regard to the Processing of Personal Data by Arm for Customer in connection with the provision of the Service.

Customer enters into this DPA and this DPA becomes binding upon execution of the Service Agreement, either upon signature of the Service Agreement by both Parties, or by Customer clicking “I accept” or by otherwise signifying its acceptance of the Service Agreement.

This DPA does not apply to any Processing of Personal Data which Arm carries out as a Controller.

1. PARTIES TO THIS DPA

1.1 This DPA is made between:

the customer as identified in the Service Agreement (“Customer“); and

the Arm Group entity that is party to the Service Agreement (“Arm“).

1.2 Customer and Arm are hereunder jointly referred to as the “Parties“, and each separately as a “Party”.

2. DEFINITIONS

2.1 For the purposes of this DPA, the following capitalised words are ascribed the following meanings:

Agreement” means the Service Agreement together with this DPA.

Arm Group” means Arm Limited, a company incorporated in England (UK), and its Subsidiaries from time to time.

Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

Data Subject” means the identified or identifiable person to whom Personal Data relates.

Data Subject Request” has the meaning ascribed to it under Clause 5.2.

Data Protection Legislation” means all laws and regulations relating to the protection of personal data and privacy of individuals (all as amended, superseded or replaced from time to time), including without limitation the California Consumer Privacy Act, the GDPR, the European Directive 2002/58/EC (as amended by Directive 2009/136/EC), including any legislative and/or regulatory amendments or successors thereto, and any applicable implementing local legislation within the EEA, any other laws and regulations of the European Union, their member states and of the United Kingdom.

Documented Instructions” has the meaning ascribed to it under Clause 4.2.

DPA” has the meaning ascribed to it above.

EEA” means the European Economic Area.

European Data Protection Legislation” means, as applicable, the GDPR, the UK GDPR and the Federal Data Protection Act of 19 June 1992 (Switzerland), each as amended, superseded or replaced from time to time.

GDPR” means the 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 CONFIDENTIAL movement of such data (General Data Protection Regulation), as amended, superseded or replaced from time to time.

Personal Data” means any information relating to an identified or identifiable natural person, and which Arm has received from Customer or Customer End Users under the Service Agreement.

Personal Data Breach” means a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by Arm under the Agreement.

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, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Service” means any and all services provided by Arm under the Service Agreement.

Service Agreement” has the meaning ascribed to it above.

Processor” means the entity which Processes Personal Data on behalf of a Controller.

Relevant Transfer” has the meaning ascribed to it under Clause 8.3.

Standard Contractual Clauses” means the clauses included in Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (2010/87).

Sub-processor” means a third party that Arm or another Arm Group entity engages for the Processing of Personal Data on behalf of Customer.

Subsidiary” means any company the majority of whose voting shares is now or hereafter owned or controlled, directly or indirectly, by a party hereto. A company shall be a Subsidiary only for the period during which such control exists.

Supervisory Authority” means an independent public authority charged with overseeing the compliance with Data Protection Legislation.

UK” means the United Kingdom.

UK GDPR” means the GDPR as incorporated into UK law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, as amended, superseded or replaced from time to time.

2.2 All capitalized terms not defined in this DPA shall have the meaning ascribed to them in the Service Agreement.

3. ROLES OF THE PARTIES

3.1 Customer shall, in its use of the Service, Process Personal Data at all times in accordance with the requirements of the applicable Data Protection Legislation and any other laws and regulations applicable to Customer and in accordance with the Agreement.

3.2 As between Customer and Arm, Customer has sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Personal Data were acquired.

3.3 If Customer is not the Controller of the Personal Data, or is a Controller jointly with others, Customer represents and warrants to Arm that any third party who is a Controller of the Personal Data agrees to the Processing by Arm of the Personal Data pursuant to the Agreement and the Documented Instructions provided to Arm pursuant to the Agreement.

3.4 Customer acts as a single point of contact and is responsible for obtaining any relevant authorizations, consents and permissions for the Processing of Personal Data in accordance with the Agreement. Where authorizations, consent, instructions or permissions are provided by Customer, these are provided not only on behalf of Customer but also on behalf of all relevant Controllers of the Personal Data. Where Arm informs or gives notice to Customer, it is Customer’s responsibility to forward such information and notices to any relevant Controller(s) (as applicable) without undue delay.

4. CUSTOMER’S INSTRUCTIONS AND CONFIDENTIALITY

4.1 The subject matter of Processing of Personal Data by Arm in the performance of the Service pursuant to the Service Agreement, the duration, the nature and purpose of such Processing, the types of Personal Data Processed under the Service Agreement and relevant categories of Data Subjects are specified in Exhibit 2 to this DPA.

4.2 The Parties agree that this DPA and the Service Agreement and the instructions provided via configuration or other tools made available by Arm under the Service Agreement (such as APIs or SDKs) constitute Customer’s documented instructions regarding Arm’s Processing of Personal Data under the Agreement (“Documented Instructions”). The Documented Instructions shall comply with applicable Data Protection Legislation and any other laws and regulations applicable to Customer.

4.3 If, in Arm’s opinion, any Documented Instruction infringes European Data Protection Legislation or other provisions of data protection laws of the European Union or of one of its member states, Arm will immediately inform Customer. For the avoidance of doubt, this Clause 4.3 does not imply any obligation binding on Arm to conduct any legal review of any Documented Instruction and any communication or information provided by Arm to Customer pursuant to this Clause 4.3 is not and shall not be deemed to be at any time as constituting legal advice.

4.4 Arm shall process Personal Data in accordance with the Documented Instructions, unless otherwise required by law to which Arm is subject. In such a case, Arm shall inform Customer of such legal requirement before Processing, unless the law prohibits such information.

4.5 In cases where Customer is a Processor, not a Controller, in respect of the Personal Data, Customer shall ensure that the Documented Instructions provide the same or similar level of data protection as those required by the instructions of the relevant Controller(s).

4.6 Any instruction related to the Processing of Personal Data additional to the Documented Instructions require prior written agreement between the Parties, including agreement on any additional fees payable by Customer to Arm for carrying out such instruction. Once agreed, any such additional instruction is deemed as a Documented Instruction under this DPA.

4.7 Where Standard Contractual Clauses apply between the Parties, the Documented Instructions are deemed to be the instructions by the Customer for the purpose of Clause 5(a) of the Standard Contractual Clauses.

4.8 Arm shall not disclose Personal Data to any third party except as permitted under the Agreement or as necessary to comply with the law or a valid and binding order of a governmental body. If Arm is required to disclose Personal Data to a governmental body, then Arm will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Arm is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Clause 4.8 varies or modifies the Standard Contractual Clauses.

4.9 Arm shall ensure that persons it authorises to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

5. OBLIGATIONS TO ASSIST

5.1 Arm shall, taking into account the information available to Arm and the nature of the Processing, provide reasonable assistance to Customer as required under applicable European Data Protection Legislation in ensuring compliance with Customer’s obligations relating to data protection impact assessments and prior consulting obligations with the competent Supervisory Authority. Arm may charge Customer for reasonable costs and expenses incurred as a result of such assistance.

5.2 Arm provides assistance to Customer in relation to data security and personal data breaches according to Clause 6. Arm may charge Customer for reasonable costs and expenses incurred as a result of any further assistance that Arm may be required to provide in that respect under applicable Data Protection Legislation.

5.3 Arm shall, to the extent legally permitted, promptly notify Customer if Arm receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure, data portability, object to Processing, or its right not to be subject to an automated individual decision making (each such request being a “Data Subject Request”). Taking into account the nature of the Processing, Arm shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under applicable Data Protection Legislation. To the extent Customer, in its use of the Service pursuant to the Service Agreement, does not have the ability to address a Data Subject Request, Arm shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Arm is legally permitted to do so and the response to such Data Subject Request is required under applicable Data Protection Legislation. To the extent legally permitted, Customer shall be responsible for any costs arising from Arm’s provision of such assistance.

6. DATA SECURITY AND DATA BREACHES

6.1 Arm has implemented and will maintain appropriate technical and organizational measures intended to protect Personal Data processed under the Agreement against accidental, unauthorised or unlawful access, disclosure, alteration, loss or destruction (“Security Measures”). Arm’s Security Measures applicable to the Service provided under the Service Agreement are further described at Appendix 1 to this DPA.

6.2 Customer agrees that the Security Measures are appropriate for the Processing of Personal Data under the Agreement. Customer agrees that Arm may modify at any time at its discretion the Security Measures, provided that Arm does not decrease the overall security of the Service during the term of the Agreement and continues to comply with Clause 6.1 above. From time to time the most up to date description of the Security Measures will be made available on Arm’s website or communicated to Customer in writing.

6.3 Arm may offer for sale or otherwise make available optional security features and functionalities additional to the Security Measures. Customer is responsible for properly configuring the Service and determining whether to use any such optional feature or functionality if appropriate in consideration of the Personal Data being Processed with the Service and the Processing activities carried out under the Service Agreement.

6.4 In the event of a Personal Data Breach, Arm shall notify Customer without undue delay after becoming aware of the Personal Data Breach. The notification shall contain information that Arm is reasonably able to disclose to Customer, including the following information (which may be provided in phases if it is not possible to provide the information at the same time):

a. a description of the nature of the Personal Data Breach including, where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of data records concerned;

b. the name and contact details of contact point where more information can be obtained;

c. a description of the likely consequences of the Personal Data Breach; and

d. a description of the measures taken or proposed to be taken to address the Personal Data Breach.

6.5 Arm shall provide reasonable cooperation and assistance to Customer, at Customer’s written request and at Customer’s cost and expense, in relation to Personal Data Breach notifications to be made to a Supervisory Authority or to Data Subjects but only insofar as Customer is not able to provide such notification on the basis of the Personal Data Breach notification that Arm has provided to Customer.

6.6 Arm’s obligation to report or respond to a Personal Data Breach under this Clause 6 is not and shall not be construed as an acknowledgement by Arm of any fault or liability of Arm with respect to the Personal Data Breach.

7 SUB-PROCESSORS

7.1 Arm is entitled to use Sub-Processors for the purpose of providing the Service under the Agreement. Arm provides information about its Sub-Processors on the Pelion Device Management Site or otherwise in writing to Customer. By entering into the Service Agreement, Customer accepts Arm’s use of Sub-Processors as they are listed on the Pelion Device Management Site at the time of agreeing to the Agreement, or as listed in the Service Agreement or otherwise communicated in writing to Customer at the time of entering into the Service Agreement. Arm is entitled to reduce the number of Sub-Processors without separate notice.

7.2 When adding a new Sub-Processor: (i) Arm shall update the list published on its website referred to under Clause 7.1 above at least 30 days before the new Sub-Processor Processes Personal Data under the Agreement. Such update is deemed to be a notice given to Customer about the proposed engagement of the new proposed Sub-Processor for the purpose of Clause 7.3 below; or (ii) where the list of Sub-processors was communicated to Customer pursuant to Clause 7.1 other than by its publication on Arm’s website, Arm shall notify Customer in writing pursuant to the provisions on legal notices under the Service Agreement about the proposed engagement of the any new Sub-Processor at least 30 days before the new Sub-Processor Processes Personal Data under the Agreement.

7.3 Customer may object to Arm’s use of a new Sub-processor for Good Cause by notifying Arm promptly in writing at [email protected] within 14 days following notice of the new proposed Sub-Processor by Arm. In the event Customer objects to a new Sub-Processor pursuant to this Clause 7.3, Arm may make available to Customer a change in the Service or recommend a commercially reasonable change to Customer’s configuration or use of the Service to avoid Processing of Personal Data by the objected-to new Sub-Processor without unreasonably burdening Customer. If Arm is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the Agreement within the following thirty (30) days with respect only to that part of the Service which cannot be provided by Arm without the use of the objected-to new Sub-Processor by providing written notice to Arm. For the purpose of this Clause 7.3, “Good Cause” means a justified doubt as to whether the new proposed Sub-Processor can comply with the relevant contractual requirements described in this DPA.

7.4 If Customer does not object to the addition of a new Sub-Processor pursuant to Clause 7.3 or if, following any such objection, Customer does not terminate the Agreement pursuant to Clause 7.3, then Customer shall be deemed to have authorized Arm to use the new Sub-Processor.

7.5 Arm shall ensure that its Sub-Processors are subject to equivalent requirements regarding confidentiality and data protection as set out in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the services provided by such Sub-Processors. Arm remains responsible towards Customer for Arm’s Sub-Processors’ acts and omissions pursuant to the Agreement.

7.6 Where Standard Contractual Clauses apply between the Parties, Customer acknowledges and expressly agrees that pursuant to Clause 5(h) of the Standard Contractual Clauses information about Arm’s Sub-Processors is given as described in this Clause 7 and that Arm may engage new Sub-Processors as described in this Clause 7.

8 INTERNATIONAL TRANSFERS OF PERSONAL DATA SUBJECT TO EUROPEAN DATA PROTECTION LEGISLATION

8.1 Customer acknowledges that the provision of the Service may require international transfers of Personal Data, including without limitation transfers to countries not recognized by the European Commission, Switzerland or the UK as providing an adequate level of protection of personal data. Customer hereby agrees to any such transfers provided that Arm complies with this Clause 8.

8.2 Subject to Clause 8.7 below, in respect of any transfer of Personal Data by Arm under this DPA from the EEA, Switzerland or the UK to countries which do not ensure an adequate level of data protection (within the meaning of the applicable European Data Protection Legislation) and to the extent such transfers are subject to European Data Protection Legislation, Arm will use at its discretion a permitted transfer mechanism under European Data Protection Legislation, (as long as recognized as a valid transfer mechanism by the competent authority), binding corporate rules (if available) or Standard Contractual Clauses.

8.3 As between Customer and Arm, the Standard Contractual Clauses set out in Exhibit 1 apply only in respect of those international transfers of Personal Data Processed under the Agreement that are subject to European Data Protection Legislation, as long as such law recognizes the Standard Contractual Clauses as a lawful transfer mechanism of Personal Data and only to the extent to which Arm does not elect to use another permitted transfer mechanism under applicable European Data Protection Legislation (“Relevant Transfer”).

8.4 At Arm’s discretion where this option is available, Arm may enter into Standard Contractual Clauses in the Customer’s name and on the Customer’s behalf with one or more Sub-Processor(s) in respect of Relevant Transfers. Customer hereby authorizes Arm to sign and execute Standard Contractual Clauses with Sub-Processors in the Customer’s name and on Customer’s behalf. Where Arm enters into Standard Contractual Clauses pursuant to this Clause 8.4, Arm shall promptly inform Customer. The Parties agree that it is Customer’s responsibility to ensure that Customer has the authority to grant Arm the power of attorney necessary pursuant to this Clause 8.4 and Customer shall provide to Arm written confirmation of it upon request.

8.5 Notwithstanding Clause 8.2 above, Customer agrees that Arm may transfer Personal Data if required to do so by law to which Arm is subject; in such a case, Arm shall inform Customer of such legal requirement before transfer, unless that law prohibits such information.

8.6 In cases where Customer is not the Controller in respect of the Personal Data, then Customer is responsible for ensuring that its agreement with the Controller(s) allows for the use of all of the transfer mechanisms mentioned in this Clause 8. Customer warrants and represents that any relevant Controller has authorized Customer to agree to the transfers as described in this Clause 8.

8.7 Customer agrees to cooperate with Arm in good faith, upon Arm’s request, to promptly have a new transfer mechanism in place in case any mechanism listed in Clause 8.2 is no longer applicable due to being modified or revoked by a competent court, the European Commission or other competent authority.

9. AUDITS

9.1 Upon Customer’s written request at reasonable intervals, Arm will make available to Customer such information in Arm’s possession and control as Customer may reasonably request, with a view at demonstrating Arm’s compliance with the obligations of a Processor under the GDPR or the UK GDPR (as applicable) in relation to Arm’s processing of Personal Data under this DPA.

9.2 Customer agrees to exercise any right it might have under applicable Data Protection Legislation to conduct an audit or an inspection (including without limitation any right to audit Sub-Processors) by submitting a written request to Arm for an audit report, in which case Arm shall provide an audit report prepared by a respected third party which is not older than 12 months, in satisfaction of such request, so that Customer can reasonably verify Arm’s compliance with its obligations in relation to its Processing of Personal Data under this DPA.

9.3 Where the Standard Contractual Clauses apply between the Parties, the Parties agree that audits pursuant to Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses may be carried out as follows:

(a)in accordance with Clauses 9.1 and 9.2 above of this DPA; and/or

(b)Customer may contact Arm to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Arm for any time expended for any such on-site audit at Arm’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Arm shall mutually agree upon the scope, timing, and duration of the audit in addition to the reasonable reimbursement rate for which Customer shall be responsible. Customer shall promptly notify Arm with information regarding any non-compliance discovered during the course of an audit.

9.4 Any information or audit report shared in accordance with this Clause 9 shall at all times be deemed as Arm’s Confidential Information.

10. LIMITATION OF LIABILITY

Each Party’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the limitations and exclusions of liability set out in the Service Agreement, and any reference thereunder to the liability of a Party means the aggregate liability of that Party under the Agreement.

11. TERM OF THE DPA AND CONSEQUENCES OF TERMINATION

11.1 This DPA shall continue in force until expiration or termination of the Service Agreement. Clauses 2, 3, 4.8, 10, 11 and 12 shall survive termination of this DPA.

11.2 Arm shall to the extent possible, at Customer’s choice, return or delete (or otherwise render permanently inaccessible) all Personal Data in its possession within 30 days (and within 120 days in respect of Personal Data stored in its back-ups) from termination or expiration of the Service Agreement (“Post-Termination Period”), unless otherwise required by law. Where Customer elects to have Personal Data returned to it pursuant to this Clause 11.2, Arm may fulfill its obligation under this Clause 11.2 by granting Customer, at Customer’s cost, access to Personal Data stored in the Service during a 30-day period following termination or expiration of the Service Agreement (or any other period as it may be agreed by the Parties in writing) (“Extended Post-termination Period”) so as to allow Customer to extract a copy of the Personal Data. Where Personal Data are not deleted by Customer, Arm shall delete (or otherwise render permanently inaccessible) Personal Data in its possession within the end of the Post-Termination Period or within 30 days (and within 120 days in respect of Personal Data stored in its back-ups) from the expiration of the Extended Termination Period, unless otherwise required by law.

11.3 Where the Standard Contractual Clauses apply, the Parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Arm to Customer only upon Customer’s written request.

12. CONFLICT RULES

12.1 In the event of any conflict between this DPA and the Service Agreement, this DPA prevails.

12.2 Where the Standard Contractual Clauses at Exhibit 1 apply, in the event of any conflict between Exhibit 1 and any other provision of this DPA, Schedule 1 prevails.

13. AMENDMENTS TO THIS DPA

13.1 Arm is permitted to modify this DPA from time to time by posting a revised version on its website or by otherwise notifying Customer according to the provisions on legal notices under the Service Agreement (each such notification, an “Amendment Notice”). Changes are effective 30 days following posting or as otherwise specified in the Amendment Notice (“Amendment Effective Date”), unless Customer objects to such amendments before the Amendment Effective Date pursuant to Clause 13.2 below. Where Customer does not object in accordance with Clause 13.2 below, Customer is deemed to have agreed on the notified amendments and this DPA is amended accordingly with effect from the Amendment Effective Date.

13.2 Save as provided under Clause 6.2, Customer may object to changes to this DPA notified by Arm pursuant to Clause 13.1 by written notice to Arm sent to [email protected] (“Objection Notice”). The Objection Notice must detail the reasons for Customer’s objection. The Parties will negotiate in good faith the proposed amendment to this DPA during the period of 30 days following receipt by Arm of the Objection Notice (“Negotiation Period”). The Parties may agree in writing to extend the Negotiation Period. Where the Parties do not agree on changes to this DPA before expiration of the Negotiation Period, either Party may terminate the Agreement by serving the other Party 10-day prior written notice within 30 days from the end of the Negotiation Period. Where the Agreement is not terminated pursuant to this Clause 13.2, Customer is deemed to have agreed on the amendments originally notified via the Amendment Notice and this DPA is amended accordingly with effect from 30 days after the end of the Negotiation Period.

13.3 Save as provided under Clause 13, any change to this DPA shall be in writing and signed by the authorized representatives of the Parties.

 

EXHIBIT 1

STANDARD CONTRACTUAL CLAUSES (PROCESSOR)

For the purposes of Article 26(2) of Directive 95/46/EC, respectively Articles 44 and 46 of the GDPR and Art. 6 of the Federal Data Protection Act of 19 June 1992 (Switzerland), for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: Customer (as identified in the DPA to which this Exhibit 1 is attached)

(the data exporter)

And

Name of the data importing organisation: Arm (as identified in the DPA to which this Exhibit 1 is attached)

(the data importer)

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 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;

(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 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

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 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.

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 guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(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, 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;

(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 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;

(h)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;

(i)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

(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 organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d)that it will promptly notify the data exporter about:

(i)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;

(ii) any accidental or unauthorised access; and

(iii)any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised 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 sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i)that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j)to send promptly a copy of any sub-processor 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 sub-processor 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 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.

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 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

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 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.

3.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

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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. 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.

2.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.

3.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.

4.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

1.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.

2.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 (please specify briefly your activities relevant to the transfer):

Customer (as identified in the DPA).

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Arm (as identified in the DPA) which processes personal data upon the instructions of the data exporter pursuant to the Service Agreement and the DPA.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

As identified in Exhibit 2 of the DPA in relation to the type(s) of services included in the Service.

Categories of data

The personal data transferred concern the following categories of data (please specify):

As identified in Exhibit 2 of the DPA in relation to the type(s) of services included in the Service.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

As identified in Exhibit 2 of the DPA in relation to the type(s) of services included in the Service.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

The objective of Processing of Personal Data by data importer is the performance of the Service pursuant to the Agreement.

 

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

Data importer will maintain at least the administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Service referred to under clause 6 of the DPA between data exporter and data importer.

 

EXHIBIT 2

DETAILS OF THE SERVICE AND OF THE PROCESSING ACTIVITIES

Details of the Processing by Arm in connection with the provision of Service consisting of device management services:

 

Subject matter and duration of the Processing Provision of the Service to Customer; Arm Processes Personal Data for as long as is necessary for the provision of the Service.
Nature and Purpose of Processing Arm Processes Personal Data as necessary to perform the Service pursuant to the Agreement, and as it may be further specified in any technical documentation made available to Customer or further instructed by Customer pursuant to the Agreement in its use of the Service. Processing includes but is not limited to storage, transfer and analysis of Personal Data.
Types of Personal Data Personal Data relating to individuals provided to Arm via the Service, by (or at the direction of) Customer or by Customer End Users (defined in the Service Agreement) 
Special categories of Personal Data N/a
Categories of Data Subjects Categories of Data Subjects include the individuals about whom data is provided to Arm via the Service by (or at the direction of) Customer or by Customer End Users (defined in the Service Agreement).

 

APPENDIX 1

SECURITY MEASURES

1. General Description of Arm’s Security Measures

Arm’s security measures are designed to:

a. ensure the security, integrity and confidentiality of Device Data and Device Specific Data

b. protect against anticipated threats or hazards to the security or integrity of Device Data and Device Specific Data; and

c. protect against unauthorized access to or use of Device Data and Device Specific Data that could result in substantial harm or inconvenience to the person that is the subject of Device Data and Device Specific Data.

2. General Procedures

a. Data Storage. Device Data and Device Specific Data is always protected using cryptographic means whenever the interfaces to it cannot be properly enumerated and protected, such as when being transmitted over a network. When the data resides in a secure location, such as on servers that are adequately controlled, it is protected using logical means as are known in the art, such as: database access lists, and file system permissions. When using cryptography, only established and/or NISTapproved algorithms and modes of operation are being used; for example, symmetric encryption is done using AES-128 or AES-256, and transport encryption is carried out using TLS and DTLS. Device Data and Device Specific Data that is stored on Internet-facing hosts is protected by network layer access control lists, which enforce a strict rule-set on incoming traffic. Anomalous activities, such as activities which can be indicative of an emerging attack, are logged and signaled for analysis and remediation.

b. Data Transfers. Arm uses cryptography standards to protect data integrity during transfers. In addition, subject to Clause 2.a above, Arm will maintain at least the following security measures: HTTP with SSL 128-bit or 256-bit encryption (HTTPS); and secure access to the Service.

c. Access and Use Monitoring. Arm will monitor Arm’s user access to and use of the Service for security, performance evaluation, and system utilization purposes.

3. Security reviews of the operations environment

The operations environment is repeatedly reviewed both in terms of design and in terms of actual execution. The latter is accomplished using penetration tests that are carried out by Arm as well as by external service providers. A summary of those reviews can be shared with Customer in certain situations and under certain conditions (such as: exposing just as long as the exposure of the outcome to one customer cannot potentially jeopardize the security posture of another customer).

Arm has experience in supporting external audits by third parties on behalf of customers. In such situations, some of the internal security review material can be shared with the external auditor, to facilitate a more thorough review for lesser costs.

4. Network security

Network security is a wide security domain that is addressed at multiple levels, some of which are:

a. Reliance on accredited and certified cloud providers to assure, inter alia, secure physical resources

b. Strong network layer access controls.

c. Patch management and vulnerability management: the former deals with knowing when components that the overall system relies on need to be updated and carrying out such updates; the latter refers to the lifecycle of discovered vulnerabilities from their discovery to their remediation, along with the associated risk management.

d. Secure authentication supporting multiple robustness levels, according to the privilege of the account to which the user authenticates. Authentication security ranges from that of using simple passwords, thorough that of using two-factor authentication.

e. Proper logging and signaling of both successful and failed attempts.

f. Secure administrative remote access to the service network, such as secure authentication.

g. Proper utilization of key management mechanisms utilizing hardware and/or software

5. Backup and Business Continuity

Arm maintains a business continuity program, including a recovery plan, sufficient to ensure Arm can continue to function through an operational interruption and continue to provide Service to Customer. The program provides a framework and methodology, including a business impact analysis and risk assessment process, necessary to identify and prioritize critical business functions. In the event Arm experiences an event requiring recovery of systems, information or services, the recovery plan will be executed promptly. Arm continuously enhances the Service’s security and availability of its multi–tenant enterprise class cloud infrastructure.

6. Key Management

Encryption keys are used all around the hosted software application that are used to provide the Service. They are used for secure storage, secure transport, for token generation, and for authentication. The hosted software application used to provide the Service does not utilize a single centralized key-store, for both architecture and security reasons. Different keys are stored by different means in accordance with their availability and security requirements.