EXHIBIT A

DATA PROCESSING AGREEMENT

FOR CUSTOMERS SUBJECT TO THE GENERAL DATA PROTECTION REGULATION (GDPR)
updated September 27, 2021
  • THIS AGREEMENT ("DPA") is entered into as of the effective date of the underlying agreement ("Effective Date"), by and between Articulate Global, LLC, a Delaware corporation located at 244 5th Avenue, Suite 2960, New York, NY 10001 ("Articulate"), and the customer agreeing to the Underlying Agreements (defined below) ("Customer"). Customer is entering into this Agreement on behalf of itself and its Authorized Affiliates. All references herein to Customer also apply to Customer’s Authorized Affiliates.
  • WHEREAS, Articulate and Customer have entered into, and may in the future enter into, one or more agreements, that require Articulate to provide certain Services to Customer (the "Underlying Agreement(s)"); and
  • WHEREAS, in providing the Services to Customer pursuant to the Underlying Agreement(s), Articulate may Process Personal Data on behalf of Customer; and
  • WHEREAS, if and to the extent Articulate Processes Personal Data on behalf of Customer, the parties will be subject to the GDPR and applicable "Data Protection Laws and Regulations"; and
  • WHEREAS, if and to the extent Articulate processes Personal Data on behalf of Customer, Customer will be acting in the capacity of Controller (data exporter), and Articulate will be acting in the capacity of Processor (data importer);
  • NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:
  • 1. Definitions.
  • 1.1 "Adequacy Certification" means a jurisdiction, data transmission mechanism (such as the Standard Contractual Clauses) or data protection certification which is compliant with Data Protection Laws and Regulations for the onward transfer of Personal Data from the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom.
  • 1.2 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this DPA. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • 1.3 "Authorized Affiliate" means any of Customer's Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the DPA between Customer and Articulate, but has not signed its own agreement or order form with Articulate and is not a "Customer" as defined under this DPA.
  • 1.4 "Controller" means the entity which determines the purposes and means of the Processing of Personal Data.
  • 1.5 "Customer Data" means all Personal Data submitted by or on behalf of Customer, or an Authorized Affiliate, to Articulate’s Services.
  • 1.6 "DPA" means these terms and conditions including ATTACHMENT 1 TO EXHIBIT A (Standard Contractual Clauses including related Appendices).
  • 1.7 "Data Protection Laws and Regulations" means all applicable laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under this DPA, including without limitation the GDPR and laws implementing or supplementing the GDPR.
  • 1.8 "Data Subject" means the identified or identifiable person to whom Personal Data relates.
  • 1.9 "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 movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
  • 1.10 "Personal Data" means any Customer Data relating to (i) an identified or identifiable natural person, and (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations).
  • 1.11 "Processing" and "Process" mean 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.
  • 1.12 "Processor" means the entity which Processes Personal Data on behalf of the Controller.
  • 1.13 "Trust & Compliance Documentation" means the documentation regarding privacy, data security, and Sub-processor information applicable to the specific Services purchased by Customer, as may be updated periodically, and accessible via Articulate’s website at https://articulate.com/trust, https://articulate.com/trust/privacy, and https://articulate.com/trust/gdpr, or as otherwise made reasonably available by Articulate.
  • 1.14 "Services" means the software and/or software-as-a-service (SaaS) provided by Articulate for e-learning and the creation of online courses.
  • 1.15 "Standard Contractual Clauses" means the agreement executed by and between Customer and Articulate and attached as ATTACHMENT 1 TO EXHIBIT A, pursuant to the European Commission’s decision (EU) 2021/914 of 4 June 2021 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
  • 1.16 "Sub-processor" means any Processor engaged by Articulate.
  • 1.17 "Supervisory Authority" means an independent public authority which is established by an EU Member State pursuant to the GDPR.
  • 2. Services. Articulate provides the Services to Customer under the Underlying Agreement(s). In connection with the Services, the parties anticipate that Articulate may Process Customer Data that contains Personal Data relating to Data Subjects.
  • 3. Designation of Controller and Processor. The parties agree that with regard to the Processing of Personal Data, Customer is the Controller, Articulate is the Processor, and that Articulate will engage Sub-processors pursuant to the requirements of this DPA.
  • 4. Responsibilities.
  • 4.1 Articulate will Process Personal Data in accordance with the Data Protection Laws and Regulations that are directly applicable to Articulate's provision of the Services.
  • 4.2 Customer shall in its use of the Services, Process Personal Data in accordance with the Data Protection Laws and Regulations. Customer’s instructions to Articulate for the Processing of Personal Data shall comply with Data Protection Laws and Regulations; provided, however, that as of the Effective Date hereof, Customer’s initial and complete instructions to Articulate for the Processing of Personal Data are provided to Articulate in the Underlying Agreement(s). Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
  • 5. Processing Purposes; Confidentiality. Articulate shall keep Personal Data confidential in accordance with the Underlying Agreement(s) and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Underlying Agreement(s) and applicable order form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented, reasonable instructions provided by Customer (for example, via email) where such instructions are consistent with the terms of the Underlying Agreement. Articulate shall not be required to comply with or observe Customer’s instructions if such instructions would violate the applicable Data Protection Laws and Regulations.
  • 6. Scope of Processing. The subject-matter and scope of Processing of Personal Data by Articulate is limited to the performance of the Services pursuant to the Underlying Agreement(s). The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Annex 1 To Attachment 1 (Exhibit A) to this DPA.
  • 7. Data Subject Requests. To the extent legally permitted, Articulate shall promptly notify Customer if Articulate receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure ("right to be forgotten"), data portability, object to the Processing, or its right not to be subject to an automated individual decision making ("Data Subject Request"). Factoring into account the nature of the Processing, Articulate shall assist Customer by appropriate organizational and technical measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Articulate shall, upon Customer’s request, provide commercially-reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent that Articulate is legally authorized to do so, and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Articulate’s provision of such assistance.
  • 8. Articulate Personnel. Articulate shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training regarding their responsibilities, have undergone a background check, and have executed written confidentiality agreements. Articulate shall take commercially-reasonable steps to ensure the reliability of any Articulate personnel engaged in the Processing of Personal Data. Articulate shall ensure that Articulate’s access to Personal Data is limited to those personnel assisting in the provision of the Services in accordance with the Underlying Agreement(s).
  • 9. Data Protection Officer. Articulate may appoint a data protection officer, but only if required by Data Protection Laws and Regulations. Inquiries should be sent to: privacy@articulate.com.
  • 10. Articulate’s Sub-processors.
  • 10.1 Customer acknowledges and agrees that Articulate may engage third-party Sub-processors in connection with the provision of the Services. Articulate agrees to publish a current list of Sub-processors via Articulate’s applicable Trust & Compliance Documentation.
  • 10.2 In order to exercise its right to object to Articulate’s use of a new Sub-processor, Customer shall notify Articulate in writing regarding the appointment of each third-party Sub-processor. In the event Customer objects to a new Sub-processor, and that objection is not unreasonable, Articulate will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially-reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Articulate is unable to make available such change within a reasonable time period, which shall in no event exceed thirty (30) days, Customer may terminate the subscription and/or applicable order(s) with respect only to those aspects of the Services which cannot be provided by Articulate without the use of the objected-to new Sub-processor by providing written notice to Articulate. Articulate will refund Customer any prepaid fees covering the remainder of the term of such order form(s) following the effective date of termination with respect to such terminated Services. If termination of applicable order form(s) is not feasible, then Customer may terminate the Underlying Agreement(s) by thirty (30) days prior written notice to Articulate.
  • 10.3 Upon request, Articulate will provide to Customer copies of Sub-processor agreements; provided, however, that to the extent that such Sub-processor agreements contain commercial information or provisions unrelated to information required by applicable Data Protection Laws and Regulations, such unrelated information may be removed by Articulate in its discretion.
  • 10.4 Articulate will not transfer any Personal Data to a Sub-processor which does not provide an Adequacy Certification reasonably satisfactory to Articulate in connection with such transfer.
  • 11. Flow Down Provisions for Sub-processor Agreements. Liability for Sub-processors.
  • 11.1 Articulate shall impose the same obligations of Articulate regarding GDPR hereunder to its Sub-processors.
  • 11.2 Articulate shall be liable for the acts and omissions of its Sub-processors to the same extent Articulate would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Underlying Agreement(s).
  • 12. Security Measures. Articulate shall maintain appropriate organizational and technical measures for protection of the security (including protection against unauthorized or unlawful Processing, and against unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data), confidentiality, and integrity of Customer Data, as set forth in Articulate’s applicable Trust & Compliance Documentation. Articulate regularly monitors compliance with these measures. Articulate will not materially decrease the overall security of the Services during Customer’s and/or Customer’s Authorized Affiliates’ subscription term.
  • 13. Third-Party Certifications and Audit Results. Articulate has attained the third-party certifications and audit results set forth in the Trust & Compliance Documentation. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), Articulate shall make available to Customer a copy of Articulate’s then most recent third-party certifications or audit results, as applicable.
  • 14. Notifications Regarding Customer Data. Articulate shall (i) implement and maintain reasonable and appropriate data security and incident management policies and procedures, as specified in the Trust & Compliance Documentation, and (ii) notify Customer without undue delay after becoming aware of the unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Articulate or its Sub-processors of which Articulate becomes aware (hereinafter, a "Customer Data Incident"), as required to assist the Customer in ensuring compliance with its obligations to notify the Supervisory Authority in the event of Personal Data breach. Articulate shall make reasonable efforts to identify the cause of such Customer Data Incident, and take those steps as Articulate deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident, to the extent that the remediation is within Articulate’s reasonable control. The obligations set forth herein shall not apply to incidents that are caused by either Customer or Customer’s Users.
  • 15. Return of Customer Data. Articulate shall return Customer Data to Customer, and to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and time periods specified in the Trust & Compliance Documentation, unless the retention of the data is requested from Articulate according to mandatory statutory laws.
  • 16. Authorized Affiliates. The parties agree that, by executing this DPA, the Customer enters into this DPA on behalf of itself, and as applicable, in the name and on behalf of its Authorized Affiliate(s), thereby establishing a separate DPA between Articulate and each such Authorized Affiliate, subject to the provisions of the Underlying Agreement(s). Each Authorized Affiliate agrees to be bound by the obligations under this DPA, and to the extent applicable, the Underlying Agreement(s). An Authorized Affiliate is not and does not become a party to the Underlying Agreement(s), and is only a party to this DPA. All access to and use of the Services by Authorized Affiliate(s) must comply with the terms and conditions of the Underlying Agreement(s) and any violation thereof by an Authorized Affiliate shall be deemed a violation by Customer.
  • 17. Communications. The Customer that is the contracting party to the Underlying Agreement(s) shall remain responsible for coordinating all communication with Articulate under this DPA, and shall be entitled to transmit and receive any communication in relation to this DPA on behalf of its Authorized Affiliate(s).
  • 18. Exercise of Rights. Where an Authorized Affiliate becomes a party to the DPA, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Articulate directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such rights under this DPA in a combined manner for all of its Authorized Affiliates together, instead of doing so separately for each Authorized Affiliate.
  • 19. Liability. Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs involving Customer’s Authorized Affiliates, whether in contract, tort or under any other theory of liability, is subject to the limitation of liability, damage waiver, and liability cap provisions of the Underlying Agreement(s), and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Underlying Agreement(s) and all DPAs taken together. Articulate's and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Underlying Agreement(s) and each DPA shall apply in the aggregate for all claims under both the Underlying Agreement(s) and all DPAs established under this Agreement, including by Customer and all of Customer’s Authorized Affiliates, and shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Each reference to the DPA herein means this DPA including its attached Attachments and Appendices.
  • 20. Data Protection Impact Assessment. Upon Customer’s request, Articulate shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Articulate. Articulate shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 21 of this DPA, to the extent required under the GDPR.
  • 21. Standard Contractual Clauses.
  • 21.1 The Standard Contractual Clauses apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Authorized Affiliates, and (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the Services. For the purpose of the Standard Contractual Clauses the aforementioned entities shall be deemed "data exporters."
  • 21.2 For the purposes of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Underlying Agreement(s) and applicable order form(s); (b) Processing initiated by Users in their use of the Services and (c) Processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Underlying Agreement(s).
  • 21.3 The parties agree that the audits described in the Standard Contractual Clauses shall be carried out in accordance with the following specifications: following Customer’s written request, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), Articulate shall make available to Customer information regarding the Articulate’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in the Trust & Compliance Documentation, to the extent that Articulate makes them generally available to its customers.
  • 21.4 The parties agree that the certification of deletion of Personal Data that is described in the Standard Contractual Clauses shall be provided by Articulate to Customer only upon Customer’s request.
  • 21.5 In the event of a conflict between the terms of the DPA and the Standard Contractual Clauses, the Standard Contractual Clauses will prevail.
  • 22. Audits. Customer may contact Articulate in accordance with the "Notices" Section of the Underlying Agreement(s) to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Articulate for any time expended for any such on-site audit at the Articulate’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 Articulate shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Articulate. Customer shall promptly notify Articulate and provide information about any actual or suspected non-compliance discovered during an audit. The provision in this section shall by no means derogate from or materially alter the provisions on audits as specified in the Standard Contractual Clauses.
  • 23. Assignment. This DPA shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of either party, whether by merger, sale of assets, or other agreements or operation of law.
  • 24. Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, terrorism, acts of God, epidemic, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or complete or partial failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
  • 25. Counterparts; Facsimile Signatures. This Agreement may be executed in multiple counterparts, each of which, when executed and delivered, shall be deemed an original, but all of which shall constitute one and the same instrument. Any signature page of any such counterpart, or any facsimile transmission thereof, may be attached or appended to any other counterpart to complete a fully executed counterpart of this Agreement, and any facsimile transmission of any signature of a party shall be deemed an original and shall bind such party.
  • 26. Order of Precedence. With respect to the rights and obligation of the parties vis-à-vis each other, in the event of a conflict between the terms of the Underlying Agreement(s) and this DPA, the terms of this DPA will control. In the event of a of a conflict between the terms of this DPA and the Standard Contractual Clauses, the terms of the Standard Contractual Clauses will control.
  • 27. Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
  • ATTACHMENT 1

    Standard Contractual Clauses
    (processors)

    SECTION I

  • Clause 1
  • Purpose and scope
  • (a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.
  • (b) The Parties:
  • (i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
  • (ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
  • (c) have agreed to these standard contractual clauses (hereinafter: “Clauses”).
  • (d) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  • (e) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
  • Clause 2
  • Effect and invariability of the Clauses
  • (a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
  • (b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
  • Clause 3
  • Third-party beneficiaries
  • (a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
  • (i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
  • (ii) Clause 8 - Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
  • (iii) Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
  • (iv) Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f).
  • (v) Clause 13;
  • (vi) Clause 15.1(c), (d) and (e);
  • (vii) Clause 16(e);
  • (viii) Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
  • (b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
  • Clause 4
  • Interpretation
  • (a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  • (b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.)
  • (c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
  • Clause 5
  • Hierarchy
  • In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
  • Clause 6
  • Description of the transfer(s)
  • The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
  • Clause 7 - Optional
  • Docking clause
  • (a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
  • (b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
  • (c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
  • SECTION II – OBLIGATIONS OF THE PARTIES

  • Clause 8
  • Data protection safeguards
  • The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
  • MODULE TWO: Transfer controller to processor
  • 1. Instructions
  • (a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
  • (b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
  • 2. Purpose limitation
  • The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
  • 3. Transparency
  • On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
  • 4. Accuracy
  • If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
  • 5. Duration of processing and erasure or return of data
  • Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
  • 6. Security of processing
  • (a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
  • (b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  • (c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
  • (d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
  • 7. Sensitive Data
  • Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
  • 8. Onward Transfers
  • The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union 2(in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
  • (i)the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
  • (ii)the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
  • (iii)the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
  • (iv)the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
  • Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
  • 9. Documentation and compliance
  • (a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  • (b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
  • (c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
  • (d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
  • (e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
  • Clause 9
  • Use of sub-processors
  • MODULE TWO: Transfer controller to processor
  • (a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter's general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
  • (b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.3 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
  • (c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
  • (d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
  • (e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
  • Clause 10
  • Data subject rights
  • MODULE TWO: Transfer controller to processor
  • (a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
  • (b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
  • (c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
  • Clause 11
  • Redress
  • MODULE TWO: Transfer controller to processor
  • (a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
  • (b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
  • (c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
  • (i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
  • (ii) refer the dispute to the competent courts within the meaning of Clause 18.
  • (d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
  • (e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  • (f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
  • Clause 12
  • Liability
  • MODULE TWO: Transfer controller to processor
  • (a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
  • (b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
  • (c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
  • (d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
  • (e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
  • (f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
  • (g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
  • Clause 13
  • Supervision
  • MODULE TWO: Transfer controller to processor
  • (a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
  • Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
  • Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
  • (b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries,submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
  • SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

  • Clause 14
  • Local laws and practices affecting compliance with the Clauses
  • MODULE TWO: Transfer controller to processor
  • (a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
  • (b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
  • (i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
  • (ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards4;
  • (iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
  • (c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
  • (d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  • (e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
  • (f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
  • Clause 15
  • Obligations of the data importer in case of access by public authorities
  • MODULE TWO: Transfer controller to processor
  • 1. Notification
  • (a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
  • (i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
  • (ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
  • (b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
  • (c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
  • (d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
  • (e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
  • 2. Review of legality and data minimisation
  • (a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
  • (b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
  • (c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
  • SECTION IV – FINAL PROVISIONS

  • Clause 16
  • Non-compliance with the Clauses and termination
  • (a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  • (b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
  • (c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
  • (i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
  • (ii) the data importer is in substantial or persistent breach of these Clauses; or
  • (iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
  • In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
  • (d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
  • (e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
  • Clause 17
  • Governing law
  • MODULE TWO: Transfer controller to processor
  • These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
  • Clause 18
  • Choice of forum and jurisdiction
  • MODULE TWO: Transfer controller to processor
  • (a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  • (b) The Parties agree that those shall be the courts of Ireland.
  • (c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
  • (d) The Parties agree to submit themselves to the jurisdiction of such courts.
  • APPENDIX

  • Explanatory Note: It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
  • ANNEX I

  • A. LIST OF PARTIES
  • MODULE TWO: Transfer controller to processor
  • Data exporter(s):
  • 1. Name:
  • The legal entity that has executed the underlying agreement(s) between the parties as the Customer, including its affiliates.
  • 2. Address:
  • As provided in the underlying agreement between the parties.
  • 3. Contact person’s name, position and contact details:
  • The exporter’s account owner or administrator.
  • 4. Activities relevant to the data transferred under these Clauses:
  • Exporter will share limited personal data with importer to enable importer to provide its e-learning course creation Software as a Service tools.
  • Role (controller or processor): Controller
  • Data importer(s):
  • 1. Name:
  • Articulate Global, LLC
  • 2. Address
  • 244 5th Avenue, Suite 2960, New York, New York 10001.
  • 3. Contact person’s name, position and contact details:
  • Brian Gil, SVP, Operations, privacy@articulate.com
  • 4. Activities relevant to the data transferred under these Clauses:
  • Importer will be the Processor of the limited personal data shared by exporter to enable the importer to provide the Software as a Service that is the subject of the underlying agreement(s) between the parties.
  • Role (controller/processor): Processor
  • B. DESCRIPTION OF TRANSFER
  • MODULE TWO: Transfer controller to processor
  • Categories of data subjects whose personal data is transferred
  • Employees and other personnel of exporter and exporter’s affiliates.
  • Employees and other personnel of contractors of exporter and exporter’s affiliates.
  • Categories of personal data transferred
  • First and Last Name
  • Employer
  • Business Contact Information (e.g., email address; phone number)
  • Image
  • Title
  • Location
  • Language Preference
  • Professional Biography
  • IP Address
  • ………………………..
  • Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
  • Not applicable
  • The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
  • Continuous as needed to provide the Software as a Service that is the subject of the underlying agreement between the parties.
  • Nature of the processing
  • Importer is: (i) providing Software as a Service for the exporter’s use, enabling exporter to create e-learning training and course content, and (ii) will receive and store personal data uploaded by the exporter (or exporter affiliates, where applicable) in its Software as a Service hosted by importer in the United States. The purpose of importer’s processing will be to allow exporter (or exporter affiliates) to access and use the Software as a Service.
  • Purpose(s) of the data transfer and further processing
  • To enable the importer to provide the Software as a Service that is the subject of the underlying agreement(s) between the parties.
  • The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
  • For as long as needed in order to provide the Software as a Service that is the subject of the underlying agreement(s) between the parties, or longer if required by law, and then will be deleted in compliance with importer’s data retention practices unless an earlier deletion is requested by exporter or its users.
  • For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
  • The subject matter is the Software as a Service described above, and the nature of the processing involves receiving personal data from the exporter, storing it, and disclosing it as needed to provide the Software as a Services to exporter. The duration of processing is set forth above.
  • C. COMPETENT SUPERVISORY AUTHORITY
  • MODULE TWO: Transfer controller to processor
  • Identify the competent supervisory authority/ies in accordance with Clause 13:
  • The supervisory authority shall be Ireland.
  • ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

  • MODULE TWO: Transfer controller to processor
  • Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
  • Measures of pseudonymisation and encryption of personal data:
  • Personal data is encrypted at rest on our servers using industry standards (e.g., AES 256bit), and key management is managed by Articulate’s hosting environment provider, Amazon Web Services.
  • Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services:
  • Articulate uses an intrusion detection system to analyze, detect, and report network events and other alert situations, and engages a third-party partner(s) to conduct security and application assessments. Articulate also uses Amazon Web Services (AWS) as its hosting provider, which provides redundancies (e.g., across three (3) or more physically isolated and resource independent availability zones).
  • Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
  • Articulate has a disaster recovery policy and related procedures, which provide that Articulate, in the event of a disaster, will rebuild its infrastructure to restore services as quickly as possible, with an RTO of 72 hours and RPO of 24 hours
  • Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
  • Articulate has an incident response policy that is tested at least annually, or whenever there is a material change to our security.
  • Measures for user identification and authorisation
  • Articulate does not store user credentials; instead, we rely on a third-party single sign-on service that implements tested and industry-accepted identity protocols to authenticate users, including encryption at rest using a minimum of AES-256 cryptographic strength.
  • Measures for the protection of data during transmission
  • Confidential data is encrypted in transit using at a minimum the Transport Layer Security protocol of TLS 1.2.
  • Measures for the protection of data during storage
  • Confidential data is encrypted at rest on our servers using the Advanced Encryption Standard 256bit industry standard. Key management is managed by Articulate’s hosting environment provider, AWS.
  • Measures for ensuring physical security of locations at which personal data are processed
  • Articulate is a fully distributed company, meaning we do not have physical offices. We host Articulate services in Amazon Web Services (AWS) servers. AWS data centers are state of the art, using innovative architectural and engineering approaches, are housed in nondescript facilities, and physical access is strictly controlled both at the perimeter and at building ingress points (e.g., professional security staff, video surveillance).
  • Measures for ensuring events logging
  • Articulate uses SIEM solutions in alignment with defined standards for log centralization and alerting functionalities, and AWS CloudWatch and AWS CloudTrail to track all changes in infrastructure
  • Measures for ensuring system configuration, including default configuration
  • Articulate codifies all infrastructure changes in revision control and uses industry best practices for safely and securely applying these changes to Articulate services.
  • Measures for internal IT and IT security governance and management
  • Articulate employees sign non-disclosure agreements and complete security training upon hire, and security training continues annually thereafter. Articulate has policies and procedure on proper data protection, management, retention, and deletion. Articulate also uses state-of-the art antivirus and mobile device management software on all Articulate workstations, monitors vendor and third-party sources for updated vulnerability information and distributes pertinent patch information promptly, and requires that the workstations for all Engineering team members and others who have access to AWS (our host) servers be encrypted at rest.
  • Measures for certification/assurance of processes and products
  • Articulate undergoes an annual SOC2 Type 2 audit conducted by a third party, and has an ISO 27001 certification (and is pursuing an ISO 27011 certification as well). Employees are required to complete security awareness training upon hire, and annually thereafter, to understand their obligations and responsibilities in complying with corporate policies that are designed to protect customer data.
  • Measures for ensuring data minimisation
  • Articulate collects personal data necessary to provide services to customers, and grants access to personal data only if necessary to enable human resources to perform their jobs. Articulate also periodically reviews access privileges and removes privileges within 24 hours of a person being terminated from Articulate. Further, personal data is retained and securely destroyed in accordance with our data retention policies (or earlier upon customer request), so long as there is no legal requirement to retain such data.
  • Measures for ensuring data quality
  • Articulate services validate user input and HTTP parameters.
  • Measures for ensuring limited data retention
  • Articulate only retains customer's personal data if needed to provide the services, and has retention policies that require regular deletion of personal data. Articulate does daily backups as part of our disaster recovery process, which data is archived for approximately 60 days and then is automatically overwritten.
  • Measures for ensuring accountability
  • Articulate takes privacy very seriously, and is committed to meeting all relevant legal requirements. For example, Articulate has implemented a privacy program, appointed a Data Privacy Officer, implemented privacy policies and practices (including on incident response), and conducts employee training at least annually.
  • Measures for allowing data portability and ensuring erasure:
  • Articulate abides by the processes set forth in its Data Processing Agreement for responding to customer requests for a copy, correction, or deletion of their end users’ personal data.
  • For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
  • The exporter’s administrators and/or users can use self-service features in the product for accessing, deleting, or correcting data about their end users.
  • All other relevant assistance will be provided through the customer support team.
  • 1Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses.
  • 2The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the Europealegislationn Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
  • 3This requirment may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
  • 4As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.