ANNEX II DATA PROCESSING AGREEMENT BETWEEN LUCIDLINK AND CUSTOMER

This Data Processing Agreement (DPA) regulates the relations between LucidLink and Customer in connection with the personal data processing (to the extent such processing might take place) by LucidLink on behalf of the Customer for the purposes of the Service provision under the LucidLink Terms of Service. This DPA also applies to the relations between LucidLink and Customer for the provision of Services with Storage, as defined in the Terms and Conditions and this DPA.

This DPA DOES NOT APPLY to processing of personal data by LucidLink in its capacity of a data controller, i.e. in situations where LucidLink determines the purposes and the means of the processing – e.g. (i) for processing of personal data related to Customer and/or its Representatives for the purposes of the conclusion and performance of the Agreement between LucidLink and the Customer under the Terms of Service (e.g. processing of information for creation of Customer account, for invoicing purposes, etc.); (ii) for performance of legal obligations of LucidLink (e.g. for tax and accounting purposes; for reporting purposes prescribed by law, etc.) or (iii) for protecting LucidLink’s legitimate interest (e.g. for handling complaints; exercising/defending against legal claims, etc.). Such processing activities as described in item (i) – (iii) above are subject to the LucidLink’s Privacy Policy available at [https://www.lucidlink.com/privacy], an integral part of the Terms of Service.

This DPA DOES NOT APPLY to the relations between Customer and third-party service providers whose services are used in relation to the Services (e.g. Cloudian Storage, Google Cloud or other S3 compliant cloud service provider). LucidLink is not a party to the contractual relations between Customer and such third parties and is not in any way responsible for the reliable and quality performance of such services. Customer is encouraged to read carefully the terms and conditions and all the other relevant documents of any such third-party service provider before entering into contractual relations with it.

This DPA is an integral part of the Agreement between the Customer and LucidLink.

1. Definitions

Upon application and interpretation of the present DPA the terms below will have the following meaning:

1.1. The “Agreement” is the agreement concluded between Customer and LucidLink under the LucidLink Terms of Service along with all the Order Forms from Customer that are incorporated into and form a part of the Agreement.

1.2. “The Regulation”/ “GDPR” is 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.

1.3. “Applicable Rules/ Applicable Rules for Personal Data Protection”, within the meaning of the present DPA are all the applicable legislative acts in effect (regulations, laws, ordinances, etc., incl. GDPR), codes of conduct, etc. that regulate the performed processing of Personal Data.

1.4. “Personal Data” are personal data within the meaning of Art. 4 (1) of the Regulation which might be processed by LucidLink on behalf of Customer in connection with the provision of the Service.

1.5. End-Device means computer, laptop, tablet, smartphone or similar device on which LucidLink’s software is installed for the usage of the Service;

1.6. All terms and definitions used in the present DPA which are not defined herein shall have the meaning used in LucidLink Terms of Service (e.g. “Service”, “Service with Storage”, “Customer Data”, etc.), and if a definition is not provided in the in the Terms of Service, they shall have the meaning provided in the Regulation (e.g. “Controller”, “Processor”, “Process”/ “Processing”, “Data Subject”, etc.), or if not defined in Regulation – the meaning pursuant to the other relevant Applicable Rules.

2. Subject and term

2.1. The purpose of the present DPA is to regulate the relations between Customer and LucidLink in relation to the processing of Personal Data (to the extent such processing might take place) by LucidLink on behalf of Customer for the purposes of provision of the Services.

2.2. By entering into the Agreement and this DPA, Customer acknowledges that (i) Customer is the sole Controller of Personal Data or (ii) has been dully instructed by and obtained authorization from the relevant Controller(s) to act and assign on behalf of the relevant Controller(s) the processing of Personal Data by LucidLink as set out in this DPA.

Customer undertakes to act as a single point of contact for LucidLink in relation to the processing of Personal Data subject to this DPA. As other Controller(s) may have certain direct rights against LucidLink, Customer undertakes to exercise all such rights on their behalf and to obtain all the necessary permissions from any such other Controller(s). LucidLink is released from obligation to inform or notify another Controller(s) when LucidLink has provided such information or notification to Customer.

2.3. The Services consist of a distributed file system – а technology solution that utilizes Customer’s access to Customer Data stored on a cloud space used by Customer, maintained by a given third-party service provider. For the purposes of provision of the Service, LucidLink processes metadata – information regarding the file system layout as hierarchy of the files and directories, names of filespaces, files and directories created/stored by Customer in the cloud space and information who have access to files/directories as set out by the Customer within their work environment. This information may contain Personal Data and in such a case, the provision of the Service requires from LucidLink to process these data. LucidLink shall process these data solely on behalf of Customer and in strict compliance with the Regulation and this DPA and Customer’s Instructions (Article 3 of this DPA). The user’s names and other users’ identifiers as well as activity/ audit logs are stored on Customer’s End-Devices and LucidLink does not have access to such details.

2.4. Customer is solely responsible to check whether the measures for protection of the Personal Data specified in this DPA are appropriate to the risk of processing the Personal Data contained in its Customer Data. In cases where those measures or other terms and provisions relevant to the processing of the Personal Data within the Services do not comply or are incompatible with the requirement applicable to the processing and protection of the Customer Data (and/or the Personal Data contained in the Customer Data) or to the activities of the Customer, the Customer shall not use the Services or respectively shall restrict the use of the Services solely to Customer Data for which the applied measures are sufficient to ensure the compliance with the applicable rules for their processing.

2.5. The Services with Storage consist of the provision of a cloud storage space along with the Services under item 2.3 above. For the provision of Services with Storage LucidLink uses a third-party cloud service provider – Wasabi Technologies, Inc. (https://wasabi.com/; “Wasabi). When subscribing for Services with Storage and by accepting LucidLink’s Terms of Service and this DPA:

2.5.1. Customer agrees and acknowledges that the parameters of these Services are also subject to the Wasabi’s Customer Agreement, Acceptable Use Policy, Platform Terms of Use, Website Terms of Use, GDPR DPA, Service Level Agreement and any other relevant legal document that is determined by Wasabi to regulate the relations with Wasabi with regard to the provision of storage services on Wasabi’s cloud space (available at https://wasabi.com/legal/; jointly “Wasabi’s Legal Documentation”/ “WLD”);

2.5.2. Customer explicitly accepts the terms of Wasabi’s Legal Documentation and undertakes to comply therewith;

2.5.3. Customer is solely responsible to check whether the security measures implemented by Wasabi for its cloud space as described in WLD ensure a level of security appropriate to the risk of processing the Personal Data contained in Customer Data. In cases where the security measures or other terms and provisions relevant to the storage and processing of Personal Data within the Wasabi cloud space do not comply or are incompatible with the requirement applicable to the processing, storage and protection of the Customer Data (and/or the Personal Data contained in the Customer Data) or to the activities of the Customer, the Customer shall not use the Service with Storage or respectively shall restrict the use of the Service with Storage solely to Customer Data for which the applied measures are sufficient to ensure the compliance with the applicable rules for their processing.

2.5.4. Customer agrees and acknowledges that the Services with Storage are provided “AS IS” and LucidLink cannot influence Wasabi’s decisions in terms of how the cloud storage services will be provided.

2.6 Where Personal Data that must be processed in compliance with GDPR, Customer undertakes when setting up its Service preferences to choose/ to indicate as storage region a region that is located in the EU, so that the territory of processing for the Services is located within the EU.

2.7. The present DPA enters into force with the conclusion of the Agreement and applies for the entire duration of the Agreement.

3. Customer’s Instructions

3.1. Documented instructions. The instructions for processing of Personal Data are the instructions contained in this DPA, as well as instructions made through the functionality of the Services (“Documented Instructions/Instructions”). Customer agrees that it will submit Customer’s Instructions in the manner provided for in the functionality of the Services and that its instructions will be in accordance with the Applicable Rules. LucidLink will process Personal Data only in accordance with the Customer’s Documented Instructions.

3.2. Additional instructions. Additional instructions by Customer regarding the processing of the Personal Data that are not stipulated in this DPA or not provided as options in the software used for the provision of the Services require prior written agreement between LucidLink and Customer, including agreement on any additional fees payable by Customer to LucidLink for carrying out such instructions. Such additional instructions shall be documented in writing by the means of Exhibits to the present DPA, bilaterally signed between the Parties.

4. Nature, scope, purposes and term of processing

4.1. In relation to the Services provision, LucidLink shall process Personal Data as far as such are contained in the information processed by LucidLink as described in Section 2.1.) on behalf of Customer for the following purposes:

4.1.1. Provision of the Services in accordance with the Agreement and this DPA which includes:

  • Utilizing Customer’s access and connection to directories created and files stored on the Customer’s cloud space;
  • Facilitating the communication between Customer’s End-Devices and the cloud space;
  • Enabling Customer to create one or more users to use the Services within the Customer account;
  • Enabling Customer to set up and manage access permissions of users to files/directories within Customer’s work environment;
  • Technical support and resolution/fixing of and response to issues, bugs, malfunctioning of the Services or similar reported by Customer.

4.1.2. Provision of the Services with Storage in accordance with the Agreement and this DPA which includes providing Customer with the opportunity to use storage space in the cloud space of Wasabi for storage of Customer Data;

4.2. The Parties acknowledge and agree that when processing Personal Data (to the extent applicable) for the purposes specified in Art. 4.1.1 and 4.1.2. above LucidLink processes these Personal Data as Data Processor on behalf of Customer. LucidLink shall not process these Personal Data for any purposes other than the ones specified in this DPA. Customer shall or Customer declares and warrants that the relevant Controller(s) under Art. 2.2 of this DPA (i) has sole responsibility for the accuracy, quality and reliability of the Personal Data and the lawfulness of their processing; and (ii) ensure that data processing instructions given to LucidLink, including instruction given by Customer by using the functionalities of the Services, are in accordance with the Applicable Rules.

5. Processing activities

5.1. For the provision of the Services and for the purposes under Art. 4.1.1 and 4.1.2, the following data processing activities will be carried out:

  • Activity 1: Processing of Personal Data for the provision of the Services related to utilization of access to Customer Data, namely providing assistance to Customer with regard to ensuring access to the structure of the filespaces, directories created and files stored on the Customer’s cloud space;
  1. a. Categories of data subjects: the data subjects are those chosen by Customer and may be Customer’s customers, employees, suppliers, end-users, etc. and any other individuals whose data are somehow included by the Customer in the types of data specified below.
  2. b. Types of Personal Data which may be processed: names of directories created and files stored on the Customer’s cloud space or on the Service with Storage space, to the extent such may contain Personal Data (e.g. names or other identifiers chosen by the Customer)
  3. c. Term: for the duration of the Agreement. For avoidance of any doubt Customer is entitled at any time to delete or modify the names of the directories created and files stored on the Customer’s cloud space or on the Service with Storage space, thus the terms for which any Personal Data contained therein in the context of using the Services are determined by Customer at its sole discretion and control.
  • Activity 2: Processing of Personal Data for the provision of the Services related to setting up and managing user access permissions to Customer Data:
  1. a. Categories of data subjects: end-users who have been provided with access to the Services as per the permissions of the Customer.
  2. b. Types of Client’s Personal Data which may be processed: access permissions of users within Customer’s account to directories created and files stored on the Customer’s cloud space, to the extent such may contain Personal Data and user’s credentials for access to the Services;
  3. c. Term: for the duration of the Agreement. For avoidance of any doubt Customer is entitled at any time to delete or modify the level of user access permissions to the directories created and files stored on the Customer’s cloud space, thus the terms for which any Personal Data contained therein in the context of using the Services are determined by Customer at its sole discretion and control.
  • Activity 3: Processing of Personal Data for the provision of the Services with Storage, i.e. providing Customer with the opportunity to store Customer Data on the cloud storage space:
  1. d. Categories of data subjects: the data subjects are those chosen by Customer and may be Customer’s customers, employees, suppliers, end-users or any other type of individuals whose data are included by the Customer in the Customer Data that are stored on the cloud space provided within the Service with Storage;
  2. e. Types of Client’s Personal Data which may be processed: any type of Personal Data chosen by Customer to be stored on cloud space provided within the Services with Storage;
  3. f. Term: for the duration of the Agreement. For avoidance of any doubt Customer is entitled at any time to extract, delete or modify the Customer Data provided for storage, thus the terms for which any Personal Data contained therein in the context of using the Services with Storage are determined by Customer at its sole discretion and control.

5.2. Whether Customer Data contains Personal Data or not is entirely up to the Customer’s discretion. If Customer Data contains Personal Data, the Categories of Data Subjects and the Types of Personal Data to be processed are entirely up to Customer’s discretion and may include any information that the Customer decides (i) to include in the names of directories created and files stored on the Customer’s cloud space to which the Customer wants to establish access through its End-Device by using the Services (ii) to store on the cloud space provided within the Service with Storage.

5.3. LucidLink does not in any way take decisions regarding the categories of Data Subjects and the types of Personal Data that are to be processed, nor is entitled to influence in any way such decisions. LucidLink does not in any way directly or indirectly control the Customer Data that has been stored or otherwise processed via its software installed on Customer’s End-Device with regard to the use of the Services incl. the Services with Storage.

5.4. If Customer Data contains Personal Data, it is Customer’s sole responsibility to decide whether the measures for ensuring security and protection of Customer Data applied by LucidLink when providing the Services as described in this DPA (and the measures applied by Wasabi as described in WLD in case of Services with Storage) are appropriate and adequate to the risks associated to the processing of the respective Personal Data. If at certain point Customer decides that the measures ensured by LucidLink (or Wasabi in case of Services with Storage) are not appropriate and adequate in relation to risks associated to the processing of given type(s) Personal Data, it is Customer’s sole responsibility to cease the usage of the Services (incl. the Services with Storage) with respect to such Personal Data.

6. Technical and organizational measures

6.1. LucidLink guarantees that it takes appropriate technical and organizational measures in compliance with the requirements of the Regulation and the Applicable Rules and undertakes to ensure protection of Data Subjects’ rights. For avoidance of any doubt, LucidLink guarantees that it applies at least the technical and organizational measures for Personal Data protection described in Exhibit No. 1 to the present DPA.

6.2. LucidLink guarantees that the personnel which have access to the Personal Data have passed initial training and will pass regular trainings on Personal Data processing and protection, in compliance with the particular processing activities and the specific risks related to the Personal Data processing. LucidLink guarantees that each person who has access to Personal Data has assumed a confidentiality obligation or is obliged by law to keep confidentiality.

6.3. The Services involve functionalities for strong end-to-end, full system encryption where all the Customer Data are encrypted on the Customer End-Devices, on the Customer’s storage space (including on the storage space when using the Service with Storage under item 2 of the Terms of Service) and remains encrypted in transit and at rest and only Customer is in possession of the encryption keys. It is up to the sole discretion of the Customer whether to use and activate these functionalities or not. In case the Customer uses these functionalities the encryption and decryption of the Customer Data is performed directly by the Customer and takes place on the Customer’s End-Devices and cloud space using the software installed on its End-Devices. LucidLink is not involved in the encryption and decryption processes. By the acceptance of the present DPA Customer is informed therewith and agrees to take the diligent care to preserve its Key Secret and acknowledges that LucidLink shall not be liable for any impossibility of Customer to decrypt and further process and use Customer Data in case of loss of Customer’s Key Secret, incl. for any loss of Personal Data. The Customer is explicitly informed and agrees that LucidLink cannot restore any forgotten or lost Key Secret.

7.Obligations of Customer

As part of this DPA and the Agreement, Customer:

7.1.  is responsible for ensuring the existence of a legal basis under the Regulation (to the extent it applies to Customer) for the processing of the Personal Data provided to the Services (incl. the Services with Storage) or agrees and warrants that the relevant Controller(s) under Art. 2.2. of this DPA has/have ensured such; 

7.2. undertakes to ensure and bears full responsibility for compliance with the requirements of the Regulation (to the extent it applies to Customer), the Applicable Rules, this DPA and the Terms of Service and WLD (in case of use of the Services with Storage) by its representatives, staff and all other persons to whom Customer may provide access to Customer Data that contains Personal Data via the Services.

8. Processing of Personal Data for the purpose of the Services provision

8.1. LucidLink undertakes:

8.1.1. not to process Personal Data for any purposes other than the ones specified in the present DPA, except when required to do so under applicable law or in the case when it acts as a Data Controller (for the cases where LucidLink acts as Data Controller see LucidLink Privacy Policy);

8.1.2. to refrain from any activities aimed at bypassing the encryption and gaining unauthorized access to Customer Data such as decrypting, extracting, recording, copying, moving Customer Data (or similar activity);

8.2. The access to Customer Data stored on third party cloud spaces in the course of Service provision will be ensured by third party service providers and Customer acknowledges that these third parties will be solely responsible for its security. These activities are outside LucidLink’s control.

8.3. By accepting this DPA and the Agreement Customer declares that it is informed that in cases determined by law, LucidLink may be required to keep and disclose to the competent authorities information it processes on Customer’s behalf. LucidLink undertakes to inform Customer of such orders, except in cases where this is prohibited by law.

8.4. Subcontractors (sub-processors)

8.4.1. Customer agrees that LucidLink may and authorizes LucidLink to use subcontractors in relation to the Service provision, including to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. LucidLink maintains an up-to-date list of subcontractors [https://www.lucidlink.com/sub-processors]. Customer agrees to the use by LucidLink of the subcontractors described in this Art. 8.4. for the purpose of providing the Services.

8.4.2. In the event of a change, Customer will be notified explicitly prior to the change. Customer can object to the inclusion of new subcontractor within 14 (fourteen) calendar days as of notification under the previous sentence. Customer objections shall be in writing and shall include Customer’s specific reasons for its objections and options to mitigate, if any. If Customer does not object within the said period, the respective subcontractors may be engaged by LucidLink and commence processing. If Customer legitimately objects to the inclusion of subcontractors and LucidLink cannot reasonably accommodate Customer’s objection, LucidLink will notify Customer. In such a case, Customer shall be entitled to terminate the Agreement with a written notice to LucidLink within 14 (fourteen) calendar days as of notification. LucidLink will reimburse a prorated amount of any pre-paid subscription fees for the period after such termination date.

8.4.3. When using subcontractors LucidLink will enter into a written agreement with them and, to the extent that the subcontractor is performing the same data processing services that are being provided by LucidLink under this DPA, LucidLink will impose on the subcontractor the same contractual obligations that LucidLink has under this DPA.  In such a case, LucidLink will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause LucidLink to breach any of LucidLink’s obligations under this DPA.

9. Performance of supervisory activities and inspections

9.1. LucidLink undertakes to provide the necessary assistance to carry out audits and verifications by a competent supervisory authority on the Personal Data processing activities (to the extent applicable) it has been assigned with by Customer.

9.2. LucidLink will periodically provide information about available certificates, audits, etc. under the form and in so far as this does not jeopardize the security of the Services. If additional data are required in connection with Personal Data protection obligations, an audit may be required after the signing of a prior agreement with LucidLink specifying the scope, duration and mutually agreed person accredited to conduct audits under the Regulation (Auditor). In carrying out this type of audit, Customer undertakes to pay all costs, fees and expenses for the activities and services performed by both the Auditor and LucidLink. An audit may be performed only in a manner and to a degree that does not prejudice the obligations and rights of other Customers relating to the protection of Personal Data.

9.3. Customer may at any time make enquiries and receive replies from LucidLink related to the processing of Personal Data in pursuance of the Agreement and the present DPA.

10. Notification to Customer

LucidLink undertakes to inform Customer:

10.1. in the case of an inspection undertaken by a data protection supervisory authority in connection with the processing of Personal Data for the purposes of the Service provision;

10.2. if it finds that it is unable to fulfill its obligations under this DPA and/or the Agreement for any reason;

10.3. without undue delay, in case it detects a security breach of the Personal Data processed for the purposes of the Service provision.

11. Cooperation with Customer

11.1. LucidLink undertakes to provide assistance to Customer:

11.1.1. in demonstrating the fulfillment of Customer’s obligations associated with the processing of Personal Data assigned by Customer;

11.1.2. in ensuring compliance with the obligations pursuant to Articles 32 to 36 of Regulation (to the extent it applies to Customer) taking into account the nature of processing and the information available to LucidLink;

11.1.3. in fulfilling the Customer’s obligations to notify the supervisory authority in the event of a personal data breach;

11.1.4. as far as reasonably possible and reasonably expected, through the functionalities of the Services and through appropriate organizational and technical measures in the performance of the Customer’s duties, to respond to the Data Subjects’ requests for exercise their rights granted under the data protection legislation. By using the Services, Customer agrees that the provided functionalities of the Service are enough in the context of the conducted processing activities in order to duly respond to Data Subjects’ requests.

11.2. The Customer acknowledges and agrees that the nature of the processing does not allow to LucidLink to identify the Data Subjects. In this respect, upon receipt of a request from a Data Subject in connection with the exercise of rights under the Regulation, LucidLink shall inform the Data Subject that it is necessary to contact directly the relevant Data Controller and that, given the nature of the Services and the encryption mechanisms used as part thereof, LucidLink cannot establish whether or not Data Subject’s Personal Data are processed or not, nor to check and determine who the relevant Data Controller is. 

12. Transborder data processing

12.1. By agreeing to this DPA, Customer is entering into the EU Standard Contractual Clauses (EU SCC) (Exhibit No. 2 thereto) with LucidLink:

(i) on its own behalf, or

(ii) on behalf of the relevant Controller(s) under Art. 2.2. of this DPA (where applicable). By doing so, Customer declares that it has the relevant authorization to enter into these EU SCC on behalf of the relevant Controller(s). In such a case, the relevant Controller(s) are to be considered additional data exporter(s) of the EU SCC concluded between Customer and LucidLink.

The above rules only for a Customer that is established in the EU or has explicitly indicated that the processing of the Customer Data needs to be performed in compliance with the Regulation. Customer agrees and, if applicable, procures the agreement of the other relevant Controller(s) that the EU SCC, including any claims arising thereof, are subject to the terms set forth in the Agreement and this DPA, including the exclusions of liability. In case of conflict, the EU SCC shall prevail.

12.2. In the event of change of the controllership towards the Personal Data which renders Customer no longer authorized to enter into the EU SCC on behalf of the new relevant Controller(s), Customer undertakes to immediately (but not later than 3 (three) calendar days as of the change of the controllership) to notify LucidLink. In such a case, Customer is obliged to make commercially reasonable efforts to obtain such authorization and if no authorization is obtained within 14 (fourteen) calendar days as of the day of notification, LucidLink is entitled to terminate unilaterally the Agreement.

13. Consequences of termination of the Agreement or of the processing activities

In the event of termination of the Agreement or the processing of Personal Data by LucidLink for the purposes of performance of the Agreement and the present DPA, Customer can export or delete the Customer Data by the means of the functionalities provided by the Service. 

14. Liability

14.1. LucidLink shall be liable for damages resulting from the processing of Personal Data only if it has not fulfilled the obligations under the Applicable Rules specifically addressed to a data processor or when LucidLink acted outside the lawful Customer Instructions or in contradiction with them. When a LucidLink has paid the full compensation for damages caused, LucidLink is entitled to request from Customer involved in the same processing operation to recover part of the compensation paid corresponding to their portion responsibility for the damages caused.

14.2. If Customer violates any of its obligations and acknowledgments under this DPA, Customer undertakes to indemnify and hold harmless LucidLink, its affiliates and subcontractors from all liabilities, claims, expenses and similar from a third party claim and/or administrative/pecuniary sanction arising of or relating to the violation of the Customer’s obligations or acknowledgments under of the present DPA.

15. Additional provisions

15.1. If any provision of this DPA is held to be void or unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This shall have no effect on the other provisions hereof or of the Agreement. The invalid clause will be replaced by the mandatory rules of the law or by the established practice.

15.2. This DPA shall be governed by the law applicable to the Agreement.

Exhibits:

  1. Exhibit No. 1 “Minimum technical and organizational measures undertaken by LucidLink”;
  2. Exhibit No. 2 “Standard contractual clauses (processors)”.

Exhibit No. 1

TECHNICAL AND ORGANIZATIONAL MEASURES UNDERTAKEN BY LUCIDLINK

LucidLink will implement and apply various technical and organizational measures to protect Customer Data and the Personal Data which may be contained in the Customer Data as described below:

1. Physical protection. LucidLink will apply and respectively will ensure that all of its subcontractors which are involved in processing of any Customer Data (e.g. datacenters) will apply at least the following technical and organizational measures for physical protection of the Customer Data, including:

  • physical access control to all premises where Customer Data may be processed;
  • up-to-date list of the people authorized to access the premises;
  • determining the regime of visits;
  • failover power supply and air conditioning;
  • means for physical protection: equipment of the areas with controlled access; security system; firefighting devices; fire detection and extinguishing .

2. Personnel protection. LucidLink will apply organizational measures regarding persons who process Customer Data, including (when applicable):

  • knowledge of the legislation relating to the protection of Personal Data;
  • knowledge of the internal policies for the Protection of Personal Data;
  • knowledge of the threats to the processed Personal Data;
  • obligations for confidentiality and non-disclosure of Personal Data;
  • training;
  • training the employees to respond to events that threaten the security of Customer Data;
  • defining roles and responsibilities of the personnel.

3. Information systems and networks. LucidLink will apply technical and organizational measures for protection of the information systems and networks, including:

  • data protection guidelines and policies;
  • regular review and update of the implemented data protection guidelines and policies;
  • inventory of all information systems and assets related to the provision of the Services and monitoring of their status;
  • periodical evaluation of the information systems used for the provision of the Services with regards to their security, integrity and availability;
  • defining roles and access levels of the personnel within the systems;
  • measures for secure identification and authentication, incl. passwords management and update;
  • session controls;
  • monitoring of the systems and audit logs;
  • software and hardware solutions for protection and security monitoring and auditing of the Services (Web Application Firewalls, Network Firewalls, etc.), as well as end-point solutions such as anti-virus and anti-malware software, automated software updates, etc.;
  • documented architecture of the infrastructure;
  • regular reviews of the architecture with respect to security and compliance with the best practices related to segmentation and isolation;
  • in case of use of wireless networks, they will be encrypted and they will use secure authentication. These networks will not have direct access to the Services and LucidLink will not use wireless networks for the provision of the Services;
  • Customer Data are stored logically separated from other Customers Customer Data;
  • minimal access rights for the personnel only as far as necessary for their job role or specific assignment, requiring access, for the duration of the assignment (e.g. “need to know” principle);
  • sanitization of physical media intended for reuse or if no reuse is planned, destruction of the physical media by following best practices.
  • backup systems to backup Customer Data and at least one copy will be stored separately from the production system;
  • regular backup restoration testing;
  • planned updates of the software, applications, systems and network devices and if necessary partial security patches after evaluation of their appropriateness and the risk involved.

4. Security Incidents

4.1. LucidLink will follow documented security incident response plan in compliance with the notification requirements of the Regulation.

4.2. LucidLink will investigate all potential security incidents and apply the response plan. Should the Customer suspect security vulnerability or incident with respect to its accounts, it should immediately notify LucidLink.

4.3. LucidLink will notify the Customer without undue delay if it identifies a security incident related to the Customer Data and will provide to the Customer, as far as reasonably possible, with information about the incident and the taken remediation activities.

5. Cryptographic protection. LucidLink will apply technical and organizational measures for cryptographic protection of Customer Data, including (:

  • standard cryptographic capabilities of the operating systems;
  • standard cryptographic capabilities of the database management systems;
  • standard cryptographic capabilities of communications equipment;
  • systems for distribution and management of cryptographic keys;
  • systems for electronic signature.

5.1. LucidLink provides the Service via zero-knowledge encryption model, where both cloud service providers and LucidLink know nothing about the Customer Data stored and transmitted on Customer’s infrastructure. To achieve this, LucidLink uses a strong end-to-end, full system encryption where all the Customer Data is encrypted on the Customer’s End-Device and remains encrypted in transit and at rest and only the Customer is in possession of the encryption keys. This prevents LucidLink and the cloud service provider from seeing the Customer Data.

5.2. The access of each individual user to a certain set of folders/files granted by Customer is established by using encryption in order to maintain isolation from other users and partitions access to the respective filespace. This way each user can only decrypt the respective parts from the shared folders/files he is given access to but cannot see anything above the filesystem.

Exhibit No. 2

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

The entity or individual identified as “Customer” in the DPA (the “data exporter”)

and

LucidLink Inc., a corporation incorporated under the laws of the United States of America, file number 5921484, having its official seat in the USA, State of Delaware and its principal place of business at 3500 South DuPont Highway, City of Dover, County of Kent, 19901 (the “data importer”)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses. 

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer [1]

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

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

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorized access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

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

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Sub-processing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data-processing services

1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1

to the Standard Contractual Clauses

Data exporter

The data exporter is the entity or individual identified as “Customer” in the DPA.

Data importer

The data importer is  LucidLink Inc., a provider of a software as a service that inter alia consists of distributed file system enabling Customer to establish facilitated access to the Customer Data stored on a third-party cloud storage space or on cloud space provided as the Service with Storage (as determined in the Terms of Service).

Data subjects

The categories of data subjects are defined in Article 5.1 of the DPA.

Categories of data

The categories of personal data are defined in Article 5.1 of the DPA. 

Processing operations

The processing operations are defined in Article 5.1 of the DPA.

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

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

The technical and organizational security measures implemented by the data importer are as described in Exhibit No. 1 to the DPA.

[1] Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.