CATO DATA PROCESSING AND
PRIVACY AGREEMENT

The security of customer data is of utmost importance to us. We (“Cato” as such term is defined in the

Order attached to the MSA or “We”), want to make the customer’s experience satisfying and safe. Because We secure and process certain types of information about our customers, We believe that our customers should fully understand the terms and conditions surrounding the solutions, products and services offered by Cato or its subsidiaries or affiliated companies (collectively, the “Services“), all as set forth in the Master Service Agreement between the parties (the “MSA“). This Data Processing and Privacy Agreement (the “Agreement“) describes how We process and secure Personal Data (as defined below) and shall be subject to the terms of the MSA. Any term used herein and not otherwise defined, shall have the meaning ascribed thereto in the MSA.

  1. Customer (as defined below) is hereby deemed to be the “Controller” within the meaning of article 4 (7) of the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “GDPR“).
  2. Cato is hereby deemed to be the “Processor” within the meaning of article 4 (8) of the GDPR.
  3. Purpose of Processing Personal Data. In order to provide the Services, We process (within the meaning of article 4 (2) of the GDPR) Cato’s customer (the “Customer”) personal data (within the meaning of article 4 (1) of the GDPR) (the “Personal Data”). We may process Personal Data only for provision and operation of the Services in accordance with this Agreement and on your documented instructions, unless otherwise required by applicable law, in which case, Cato shall inform Customer of such legal requirement before carrying out the processing, unless prohibited by relevant law. By entering into this Agreement and using the Solution, you instruct Cato to process Personal Data, in accordance with this Agreement and in compliance with applicable law. “Personal Data” means any information relating to an identified or identifiable natural person.
  4. Global Processing. In order to provide a global service, Cato may need to process Personal Data at locations other than physical locations where Customer reside, for example to support the Customer’s mobile users or cloud resources.4.1. Customer hereby agrees that Cato can process and transfer Personal Data outside of the European Economic Area (“Transfer”).4.2. Customer and Cato hereby agree to enter into the Standard Contractual Clauses attached under Schedule 1. Cato and Customer agree that Schedule 1 shall be deemed incorporated by reference into and form part of this Agreement. Cato and Customer agree that the body of this Agreement supplements the provisions of Schedule 1 and that the provisions of Schedule 1 shall prevail in case of contradiction. For the purposes of Schedule 1, Customer and Cato agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities located in the EU, and (ii) Cato will act as the data importer on Cato’s own behalf and on behalf of any Cato’s entities.4.3. Customer warrants that Customer has no reason to believe that the laws in the importing country, including requirements to disclose Personal Data or measures authorizing access by public authorities, prevent Cato from fulfilling its obligations under this Agreement and Schedule 1. In relation to the aforementioned, Customer has taken into account (a) the specific circumstances of the transfer, (b) the laws of the importing country in light of such circumstances of transfers, including requirements to disclose Personal Data to, or otherwise authorize access by, public authorities, and (c) the technical and organizational measures set forth in this Agreement and to the processing of Personal Data in the importing country by Cato. In light of the abovementioned assessment, Customer considers that the measures set forth in article 8 below are adequate and sufficient for Customer and Cato to comply with their respective obligations related to Transfer of personal data under GDPR. Upon Customer’s reasonable request, Cato shall reasonably provide Customer with relevant information in relation to (a)-(c) above and agrees to continue to reasonably cooperate with Customer in ensuring compliance with this Agreement and Schedule 1.
  5. Sub-Processors. Customer authorizes Cato to subcontract the processing of Personal Data to third parties (the “Sub-Processors”). The Sub-Processors listed at https://support.catonetworks.com/hc/en-us/articles/360012763918 as at the date of this Agreement (the “Sub-Processor List”) are approved by the Customer. Such Sub-Processor List shall be updated by Cato upon any change in the identity of the Sub-Processors. You may review and present material and reasonable objections, if any, which objections must be provided to Cato within 7 days from the update of the list of subcontractors. You may signup, using the link above, to receive notification of any change to the Sub-Processor List. If you object to the use of a certain Sub-Processor
    (the “Applicable Sub-Processor”), for a legitimate reason and the parties cannot reach an amicable solution on how to proceed further, Cato may continue to provide the Solution without the use of the Applicable Sub-Processor.
    Cato shall ensure by way of a written contract that Sub-Processors are required to comply with data protection obligations, which are no less onerous than the obligations to which Cato is subject pursuant to this Agreement. Cato will remain liable to Customer for any failure by a Sub-Processor to fulfil its obligations in relation to the Processing of Customer Data.
  1. Rights of the Customer. Cato processes Personal Data only to provide the Services in accordance with this Agreement. We review our data security and processing practices to ensure that We only process and maintain Personal Data required to effectively carry out the Services. We process such Personal Data in compliance with all applicable privacy laws.
    Cato will immediately forward to Customer any data subject’s request or complaint Cato may receive. Cato shall provide the Customer with appropriate reasonable support for the performance of the rights of the data subjects under articles 12 to 22 of the GDPR and make available the information required.
  1. Data Security. Cato takes data security seriously, and therefore, Cato’s servers are protected by the broadest industry standards of security technology in compliance with the GDPR. We employ physical, electronic, and procedural security measures and safeguards to protect Personal Data. All of Cato’s systems are monitored and scanned routinely for vulnerabilities and intrusions. Our data security policies and procedures are aligned with widely accepted international standards and are reviewed and updated as necessary to meet changes in technology, and regulatory requirements.
    Upon written request, Cato may provide you with copies of our annual SOC 2 and ISO 27001 certificates.
  1. Security Measures. Cato implements the following security measures with respect to Personal Data:

8.1 Access Control of Processing Areas.  Take measures to prevent unauthorized persons from gaining access to Cato data processing equipment (namely servers and related hardware) where Personal  Data is processed or used, by, for example: (i) establishing secure processing; (ii) protecting and restricting of access paths; (iii) monitoring, logging and hosting all access to the data centers where Personal  Data is hosted; and (iv) securing all data centers where Personal Data is hosted by a security alarm system, and other appropriate security measures.

8.2 Access Control to Data Processing Systems.  Process and procedures to prevent Cato data processing systems from being used by unauthorized persons, to include: (i) identification of the user to the data processor systems; (ii) issuing and safeguarding of identification codes; (iii) password complexity requirements (minimum length, expiry of password, etc.); and (iv) protection against external access by means of an industrial worldwide standard firewall.

8.3 Access Control to Use Specific Areas of Data Processing Systems. Measures to ensure that persons entitled to use Cato’s data processing systems are only able to access the data within the scope and to the extent covered by their respective access authorization and that Personal  Data cannot be read, copied or modified or removed without authorization, to include by: (i) implementing binding employee policies and providing training in respect of each employee’s access rights to the Personal Data; (ii) effective and measured disciplinary action against individuals who access Personal  Data without authorization; (iii) release of data to only authorized persons; (iv) policies controlling the retention of back-up copies; and (v) the prohibition of creating backdoors or similar programming that could be used to access its systems or Personal Data in general and by public authorities.

8.4 Transmission Control. Procedures to prevent Personal Data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media and to ensure that it is possible to check data transmission facilities, to include: (i) use of firewall and encryption technologies to protect the gateways and pipelines through which the data travels, including during transmission and at rest; (ii) constant monitoring of infrastructure; and (iii) monitoring of the completeness and correctness of the processing of data. Cato agrees (i) to not voluntarily provide any public authorities with any encryption keys or any other means to circumvent Cato’s encryption; (ii) to not purposefully facilitate access to its system or Personal Data.

8.5 Input Control. Measures to ensure that it is possible to check and establish whether and by whom Personal Data has been input into data processing systems or removed, to include: (i) authentication of the authorized personnel; (ii) protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data; (iii) utilization of user codes (passwords); and (iv) providing that entries to data processing facilities are capable of being locked.

8.6 Availability Control. Measures to ensure that Personal Data are protected from accidental destruction or loss, to include: (i) infrastructure redundancy; and (ii) regular backups performed on servers.

8.7 Segregation of Processing. Procedures to ensure that data collected for different purposes can be processed separately, to include: (i) separating data through application security for the appropriate users; and (ii) designing interfaces, batch processes and reports for only specific purposes and functions, so data collected for specific purposes is processed separately.
Where required, Cato will reasonably assist Customer in ensuring compliance with the obligations pursuant to article 32 of the GDPR.

  1. Access to Personal Data by public authorities. Except as prohibited under applicable laws, or the specific request of the public authority, in writing, Cato agrees to notify Customer promptly if (i) Cato receives a legally binding request from a public authority, including judicial authorities, under the laws of the importing country for the disclosure of Personal Data, or (ii) Cato becomes aware of any direct access by public authorities to
    Personal Data. Cato agrees to not voluntarily cooperate with a public authority’s request for Personal Data, unless it is required and forced to do so. Cato agrees to reasonably cooperate with Customer in relation to the handling of any such request for access from or access by public authorities to the extent legally possible.
  1. Security Incident Notification. If Cato becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, Customer’s Data (“Security Incident”), Cato will notify Customer without unreasonable delay, but in any event within 2 business days from becoming aware of the Security Incident. Cato will also reasonably cooperate with Customer with respect to any investigations and with preparing potentially required notices, and provide any information reasonably requested by Customer in relation to the Security Incident. Cato shall update Customer as soon as it is aware of the following information regarding the Security Incident:
    10.1 the details of a contact point where more information can be obtained;
    10.2 a description of the nature of the Security Incident, the categories and approximate number of affected data subjects, and the categories and approximate number of affected Personal Data records;
    10.3 a description of the likely consequences of the Security Incident;
    10.4 the measures taken or proposed to be taken by Cato to address the Security Incident, including, where appropriate, measures to mitigate its possible adverse effects.
    Cato shall take appropriate measures to address the breach, including measures to mitigate its adverse effects, and , if necessary, shall provide Customer with appropriate support for the performance of the duties under articles 33 and 34 of the GDPR.
  2. Impact Assessment. Cato shall reasonably assist the Customer in fulfilling its obligations, if any, to conduct an impact assessment and/or prior consultation with a supervisory authority pursuant to articles 35 and 36 of the GDPR.
  3. Compliance. Please feel free to direct any questions or concerns regarding this Agreement or our treatment of Personal Data by contacting us as provided herein below. If you have any questions about this Agreement, please feel free to contact us at: privacy@catonetworks.com. At request, Cato shall make available to the Customer all information necessary to demonstrate compliance with the applicable articles of the GDPR, including article 28 of the GDPR, and copies of our annual SOC 2 and ISO 27001 certificates. To the extent compliance cannot reasonably be demonstrated through the abovementioned information and certificates Cato makes available to Customer, Cato will allow for and contribute to audits conducted by the Customer or another auditor mandated by the Customer, all at the Customer’s own expense, upon reasonable advanced written notice and subject to confidentiality obligations.
    12.1. Such audit shall be conducted no more frequently than once in any rolling twelve
    (12) month period.
    12.2. To request an audit, Controller must submit to Cato ninety working days in advance of the proposed audit data (i) the name of the proposed auditor; (ii) a detailed proposed audit plan to Cato. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Cato will review the name of the proposed auditor and the proposed audit plan, and may reasonably object where the requested audit could compromise Cato’s business conduct, security, privacy, employment or other relevant policies. In case of objection from Cato to the proposed auditor and/or audit plan, Cato and Customer agree to cooperate in good faith to find a mutually acceptable solution
    12.3. Such audit shall be limited to Cato’s Processing activities performed on behalf of Customer.
    12.4. The approved auditor must be bound by a confidentiality agreement.Cato agrees to promptly notify Customer if Cato is unable to comply with this Agreement for whatever reason. In such a case, Customer shall have the right to immediately suspend the Processing.
  4. Confidentiality. Cato ensures that everyone, including its employees, agents and/or subprocessors (if any), who are involved in the processing of Personal Data, treat the Personal Data as confidential. Cato ensures that each person who is involved in the processing of Personal Data has entered into a confidentiality agreement or accepted a confidentiality clause.
  5. Retention of Personal Data. Cato shall delete or return all Personal Data, including existing copies, after the Term (as defined below) ends, unless relevant local law to which Cato is subject requires storage of the Personal Data. During the Term, Cato will retain Customer Data (including Personal Data) for the period stipulated in the applicable Order, unless the Personal Data has to be kept for a longer period, such as in the context of Cato’s legal obligations.
  6. Term. The term of this Agreement shall be the term of the MSA.
  7. Governing Law & Jurisdiction. Without prejudice to Schedule 1, (i) the parties to this Agreement hereby submit to the choice of jurisdiction stipulated in the MSA with respect to any disputes or claims howsoever arising under this Agreement, including disputes regarding its existence, validity or termination or the consequences of it nullity; and (ii) this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the MSA.
  8. Interpretation. Any conflict between the provisions of Schedule 1, the other provisions of this Agreement, and the MSA shall be resolved in the following order of precedence, listed sequentially from highest precedence to lowest: (1) Schedule 1 (2) the other provisions of this Agreement, and then (3) the MSA.
  9. China Supplement. For Customer who has subsidiaries and/or affiliates using the Services in China, in connection with process of Personal Data in China, Schedule 2 (China Supplement) shall apply.  Should there be any conflict between the provisions of Schedule 2 (China Supplement) and the other provisions of this Agreement, and the MSA, solely to the extent relevant to process of Personal Data in China, such conflict be resolved in the following order of precedence, listed sequentially from highest precedence to lowest: (1) Schedule 2, (2) Schedule 1, (3) the other provisions of this Agreement, and then (4) the MSA.

Version 2023-11 Last Updated as of November 1, 2023

SCHEDULE 1
STANDARD CONTRACTUAL CLAUSES CONTROLLER TO PROCESSOR

 

SECTION 1

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’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) 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 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).

(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

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.

8.1 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.

8.2 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.

8.3 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 its 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.

8.4 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.

8.5 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).
8.6 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.

8.7 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.

8.8 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 Union2 (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.

8.9 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

(a) 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 7 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 subjects3. 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

(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

(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

(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

(a) 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.
(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

(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 safeguards 4;
(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

15.1 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.

15.2 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

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of the Member State where the data exporter is established.

Clause 18

Choice of forum and jurisdiction

(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 the Member State where the data exporter is established.
(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.

 

 

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, 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 included in Decision 2021/915.

2The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, 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 requirement 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.

 

 

 

 

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

Data exporter(s): the Customer identified in the Order;
Role: Controller;
Data importer(s): the Cato Networks applicable entity identified in the Order.
Role: Processor.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

  • Customer’s employees, contractors, consultants, and anyone belonging to Customer’s workforce
  • Customer’s customers, vendors, suppliers, partners, and any third parties of which Customer may hold personal data from.

Categories of personal data transferred

Personal Data provided by the Data Exporter to facilitate the Data Importer’s provision of the Solution to the Data Exporter, including:

  • Customer’s users contact details, or information that Customer decides to provide to Cato by or through the Solution or any other means or mechanisms.
  • Metadata used to steer traffic based on Customer’s environment. Metadata may include file metadata, hash, file type, command line arguments, network access metadata (IP address, protocol), registry (created keys, deleted keys, modified key names), and network data (internal network IP address, public 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.

None in general. However, solely with respect to DLP services, any sensitive data that may be visible or exposed in Customer’s traffic flowing through the Solution is incidental and dependent on the Customer’s use of the DLP services.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
As defined in the work order, on a continuous basis.

Nature of the processing

The Cato Cloud is the new enterprise network perimeter, implemented as a tightly integrated network and security software stack. It connects all branch offices, mobile users, physical and cloud data centers to provide secure WAN and internet connectivity.

Purpose(s) of the data transfer and further processing

Provision of the Services and the Solution to the Customer in accordance with the MSA and the Order concluded 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
See section 14 of the Agreement.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
See section 5 of the Agreement.
…
C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13
The supervisory authority with responsibility for ensuring compliance by the Customer.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

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.

The technical and organizational security measures implemented by the data importer are as described in the in Section 8 of the Cato Data Processing and Privacy Agreement, to which the Clauses are attached.

Schedule 2: China Supplement

Reference is made to the CATO DATA PROCESSING AND PRIVACY AGREEMENT (the “DPA“); capitalized terms used but not defined in this Schedule 2 shall have the meaning set forth in the DPA.  This Schedule 2 (China Supplement) applies to Customers who have subsidiaries using the Services in China (solely for the purpose of the DPA and this Schedule 2, the terms “China” and “the PRC” refer to the People’s Republic of China, excluding the Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan).  Should there be any inconsistence or conflict between the terms of this Schedule 2 and the other provisions of the DPA, solely to the extent relevant to Services in China, the terms of this Schedule 2 shall prevail.

1. Roles of the Parties. Customer (for the purpose of this Schedule 2, including its subsidiaries and affiliates using the Services in China) is deemed to be the “Data Processor” within the meaning of article 73 of the Personal Information Protection Law of China (the “PIPL“); and Cato and its Partners (as defined below), being parties that process personal information under the authorization and instructions of the Customer but not independently decide on the purposes and methods of processing, are the entrusted parties under article 21 of the PIPL (the “Entrusted Party“).

2. Authorization. The Parties acknowledge and agree that, for the purpose of providing the Services and as part of the Services, Cato and its Partners need to collect, store, use, process, transmit and/or delete personal information.  Customer hereby directs and instructs Cato to process personal information within the scope set forth below:

2.1. Purpose of Processing: solely for the purpose of providing the Services set forth in the MSA (including any exhibits, schedules, addendums, attachments and/or amendments thereto);

2.2. Period of Processing: during the term of the MSA;

2.3. Method of Processing: (i) Securing and transmitting all Customer Data (including any Personal Data included therein) to the recipient(s) (in and outside of China) designated by the End-Users; (ii) collecting the Management Data, transmitting such Management Data to and storing such Management Data at Cato’s data center(s) (in and outside of China) for Customer’s review and analysis; (iii) anonymizing the Management Data and transmitting the anonymized data to Cato, or a party designated by Cato, to be used for the purpose of analyzing, improving and upgrading the Services; and (iv) deleting all Customer Data and Management Date upon completion, revocation or expiration of the MSA, except that Cato and its Partners will retain Customer Data for a period stipulated in the applicable Order, unless the Personal Data has to be kept for a longer period, such as in the context of Cato’s legal obligations; and

2.4. Partner(s): Cato may license its Partner(s) to exercise/perform all or part of the authorization under this Section 2 for the purpose of performing its obligations under the MSA, but shall not be licensed or transferred to any third party (other than Cato’s Partners).  The Parties acknowledge and agree that each Partner is a sub-entrusted party under article 21 of the PIPL and Cato’s engagement of such sub-entrusted party has been agreed by Customer.

3. Customer’s Obligations

3.1. Consents: Customer shall, by itself and/or through its subsidiaries and affiliates in China, obtain all consents (and separate consent, if applicable) from the data subjects (including but without limitation to the End-Users) as required under applicable laws and regulations of China that are necessary for Customer to process, and engage Cato as the entrusted party to process (including transmit out of China), the Customer Data and Management Data process (including transmit out of China) the Customer Data and Management Data (including Personal Data included therein).

3.2. Qualification and Approvals: Customer shall obtain all approval, authorization, certification, permission and/or exemption from competent government authorities or qualified third party professional institutions that are required for Customer to process, and engage Cato as the entrusted party to process (including transmit out of China), the Customer Data and Management Data, including transmitting Personal Data out of China.

4. Cato’s Obligations

4.1. Limited Authorization. Cato, being the Entrusted Party, shall process Personal Data as set forth in the DPA and this Schedule 2, and shall not process Personal Data beyond the authorization set forth in Section 2 of this Exhibit.

4.2. Protection Measures. Cato shall implement appropriate security measures to protect the Personal Data. The Parties acknowledge and agree that the measures set forth in Article 8 of the DPA are adequate and sufficient for Customer and Cato to comply with their respective obligations related to protection of Personal Data under the PIPL.

4.3. Right of Data Subject. With respect to Cato’s obligations under paragraph 2, Section 6 of the DPA, to the extent relevant to Personal Data processed within China, Cato shall, and shall cause Partners to, provide Customer with appropriate reasonable support for the exercise of the right of the data subjects under articles 44 to 50 of the PIPL.

4.4. Security Incident Notification. With respect to Cato’s obligations under paragraph 2, Section 10 of the DPA, to the extent relevant to Personal Data processed within China, Cato shall, and shall cause Partners to, shall provide Customer with appropriate support for the performance of the duties under article 57 of the PIPL.

4.5. Impact Assessment. With respect to Cato’s obligations under Section 11 of the DPA, to the extent relevant to Personal Data processed within China, Cato shall, and shall cause Partners to, reasonably assist the Customer in fulfilling its obligations, if any, to conduct an impact assessment and/or prior consultation with a supervisory authority pursuant to articles 55 and 56 of the PIPL.

5. Definitions

“Customer Data” means any record of information in electronic form that Customer transmits by using Services.

“End-user” means an individual authorized by Customer to use Services (in China).

“Management Data” means any record in connection with Customer’s (including the End-Users’) use of Services, including without limitation to the End-User’s IP-address, log-in and log-off time, the sites linked from, pages visited, the links and features used, the content viewed or requested, browser or application type, cookie data and traffic flow.

“Partner” means Cato’s partner which (or an affiliate of which) holds the telecommunication service permits for providing Services in China and through which (or the affiliate of which) the Services are provided to the Customer’s subsidiaries and affiliates in China.

“Personal Data” has the meaning set forth in article 4 of the PIPL, i.e., all kinds of information related to an individual as an identified or identifiable natural person that are electronically or otherwise recorded, excluding information that has been anonymized.

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