LABWARE CLOUD SERVICES AGREEMENT

This Data Processing Addendum (“DPA”) and its applicable exhibits apply, to the extent provided for in the Cloud Services Agreement to which this Addendum is attached (the “Agreement”), to Personal Data processed by LabWare and its Subprocessors in connection with its provision of the Cloud Services to Customer. Capitalized terms used herein, but not otherwise defined herein, shall have the meanings assigned thereto in the Agreement. For the avoidance of doubt, this DPA shall only become effective if required by the terms of the Agreement.

To the extent required under applicable law, this DPA extends to Customer’s Authorized Affiliates if and to the extent LabWare processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.

 

1. DEFINITIONS

1.1. “Authorized Affiliate” means any Affiliate of Customer that (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted by Customer to use any Cloud Service.

1.2. “Controller” means any Person that, alone or jointly with others, determines the purposes and means of processing Personal Data. For the purposes of this DPA, where Customer acts as Processor for another Controller, Customer shall in relation to LabWare be deemed an additional and independent Controller with the respective Controller rights and obligations under this DPA.

1.3. “Data Center” means the location where a Cloud Service is hosted for Customer or notified to Customer or otherwise agreed in a Service Level Agreement (“SLA”).

1.4. “Data Protection Law” means any law or regulation applicable to the Processing of Personal Data.

1.5. “Data Subject” means an identified or identifiable natural person as defined by any Data Protection Law.

1.6. “EEA” means the European Economic Area.

1.7. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

1.8. “Personal Data” means any information relating to a Data Subject that is protected under Data Protection Law and is (i) entered by Customer or its Authorized Users into or derived from their use of a Cloud Service, or (ii) supplied to, or accessed by, LabWare or its Subprocessors in order to provide or support a Cloud Service.

1.9. “Personal Data Breach” means a confirmed: (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to a competent data protection authority or a Data Subject.

1.10. “Processing” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

1.11. “Processor” means a Person that processes Personal Data on behalf of a Controller, either directly as Processor or indirectly as a Subprocessor of a Processor that processes Personal Data on behalf of a Controller.

1.12. “Restricted Transfer” means:

1. a transfer of Personal Data from Customer or any Authorized Affiliate to a Processor; or
2. an onward transfer of Personal Data from a Processor to a Processor, or between two establishments of a Processor,

in each case, where such transfer would be prohibited by Data Protection Law (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Law) in the absence of the Standard Contractual Clauses.

1.13. “Standard Contractual Clauses” the Standard Contractual Clauses or any subsequent version thereof published by the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. The Standard Contractual Clauses current as of the Effective Date of the Agreement are attached hereto as Exhibit A.

1.14. “Subprocessor” means any Processor engaged by LabWare or its Affiliates in connection with a Cloud Service.

1.15. “Supervisory Authority” means an independent public authority that is established by a member state of the European Union pursuant to the GDPR.

2. BACKGROUND

2.1. Appendices. Appendix 2 to the Standard Contractual Clauses is incorporated into and forms part of this DPA and sets out the applicable technical and organizational security measures.

2.2. Customer’s Processing of Personal Data. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller. Customer shall, in its use of a Cloud Service, process Personal Data in accordance with the requirements of Data

Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.

2.3. GDPR. LabWare and Customer agree that it is each party’s responsibility to review and adopt requirements imposed on Controllers and Processors by the GDPR, in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under this DPA.

2.4. Consents and Authorizations. LabWare acts as a Processor and Customer, its Authorized Users and any other Person it permits to use any Cloud Service act as Controller under this DPA. CUSTOMER ACTS AS A SINGLE POINT OF CONTACT AND IS SOLELY RESPONSIBLE FOR OBTAINING ANY RELEVANT AUTHORIZATIONS, CONSENTS AND PERMISSIONS FOR THE PROCESSING OF PERSONAL DATA IN ACCORDANCE WITH THIS DPA, INCLUDING, WHERE APPLICABLE APPROVAL BY CONTROLLERS TO USE LABWARE AS A PROCESSOR. WHERE AUTHORIZATIONS, CONSENTS, INSTRUCTIONS OR PERMISSIONS ARE PROVIDED BY CUSTOMER THESE ARE PROVIDED NOT ONLY ON BEHALF OF CUSTOMER BUT ALSO ON BEHALF OF ANY OTHER CONTROLLER USING THE CLOUD SERVICE. WHERE LABWARE GIVES NOTICE TO CUSTOMER, SUCH INFORMATION OR NOTICE IS DEEMED RECEIVED BY EACH CONTROLLER PERMITTED BY CUSTOMER TO USE A CLOUD SERVICE AND IT IS CUSTOMER’S RESPONSIBILITY TO FORWARD SUCH INFORMATION AND NOTICES TO THE RELEVANT CONTROLLERS. CUSTOMER’S USE OF ANY CLOUD SERVICE CONSTITUTES ITS REPRESENTATION AND WARRANTY THAT CUSTOMER HAS OBTAINED ALL NECESSARY CONSENTS AND AUTHORIZATIONS.

 

3. SECURITY OF PROCESSING

3.1. LabWare and its Subprocessors have implemented and will apply the technical and organizational measures set forth in Appendix 2 to the Standard Contractual Clauses. Customer has reviewed such measures and agrees that as to any Cloud Service to which Customer subscribes, the measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.

3.2. LabWare may change the measures set out in Appendix 2 to the Standard Contractual Clauses at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.

 

4. LABWARE OBLIGATIONS

4.1. LabWare’s Processing of Personal Data. LabWare will process Personal Data only in accordance with documented instructions from Customer. The Agreement, this DPA, and any related SLA constitute such documented initial instructions and each use of a Cloud Service then constitutes further instructions. LabWare will use reasonable efforts to follow any other Customer instructions, provided such instructions are required by Data Protection Law, technically feasible and do not require changes to any Cloud Service. If any of the before-mentioned exceptions apply, or LabWare otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, LabWare will immediately notify Customer.

As required under Article 28(3) of the GDPR, the subject matter and duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects are summarized in Annex 1 to this DPA. Upon prior written notice, Customer may request reasonable amendments to Annex 1 as Customer reasonably considers necessary to meet the requirements of Article 28(3) of the GDPR and LabWare will review such requested changes.

4.2. Processing Required by Law. LabWare may process Personal Data where required by applicable law. In such a case, LabWare shall inform Customer of the legal requirement before Processing, unless otherwise prohibited by law.

4.3. Personnel. To process Personal Data, LabWare and its Subprocessors shall only grant access to authorized personnel who have committed to maintain the confidentiality of such Personal Data.

4.4. Cooperation. At Customer’s written request, LabWare will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding LabWare’s Processing of Personal Data or any Personal Data Breach.

4.5. Personal Data Breach Notification. LabWare will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide any information in its possession reasonably requested by Customer to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. LabWare is permitted to provide such information in phases as it becomes available, as permissible under Data Protection Law. Any such notification by LabWare shall not be interpreted or construed as an admission of fault or liability by LabWare.

4.6. Identifying A Personal Data Breach. LabWare shall make reasonable efforts to identify the cause of a Personal Data Breach and take those steps as LabWare deems necessary and reasonable in order to remediate the cause of such a Personal Data Breach to the extent the remediation is within LabWare’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Authorized Users.

4.7. Data Protection Impact Assessment. If Customer or its Controllers are required under a Data Protection Law to perform a data protection impact assessment or prior consultation with a Supervisory Authority, LabWare will, at Customer’s written request, provide (i) such reasonably requested documents as are generally available to LabWare for each applicable Cloud Service, and (ii) reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority to the extent required by the GDPR.

 

5. DATA EXPORT AND DELETION

5.1. Export and Retrieval by Customer. So long as Customer subscribes for a Cloud Service, Customer will have access to any Personal Data stored or hosted by LabWare or its Subprocessor as part of such Cloud Service, subject to the terms of the Agreement.

5.2. Return and Deletion. LabWare shall return Personal Data to Customer and, to the extent allowed by applicable law, delete Personal Data within a reasonable time period in line with Data Protection Law unless applicable law requires retention.

 

6. CERTIFICATIONS AND AUDITS

6.1. Customer Audit. Upon Customer’s written request at reasonable intervals, LabWare shall provide a copy of LabWare’s then most recent third-party audits or certifications, as applicable, or any summaries thereof, related to the Processing of Personal Data of Customer, that LabWare generally makes available to its customers at the time of such request.

 

LabWare shall make available to Customer, upon reasonable written request, such information necessary to demonstrate compliance with this DPA, and shall allow for written audit requests by Customer or an independent auditor on behalf of Customer in relation to the Processing of Personal Data to verify that LabWare employs reasonable procedures in compliance with this DPA, provided that Customer shall not exercise this right more than once in any twelve (12) month period. Such information and audit rights are provided under this Section to the extent the Agreement does not provide such audit rights that meet the requirements of applicable Data Protection Laws (including, where applicable, Article 28(3)(h) of the GDPR). Any information provided by LabWare and/or audits performed pursuant to this section are subject to the confidentiality obligations set forth in the Agreement.

6.2. Other Controller Audit. If more than one Controller whose Personal Data is processed by LabWare on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.

6.3. Scope of Audit. Customer shall provide at least sixty (60) days advance written notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Unless mandatory Data Protection Law or other competent data protection authority requires, Customer audits shall be limited in time to a maximum of three (3) business days. Customer shall provide the results of any audit to LabWare.

6.4. Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by LabWare of this DPA, then LabWare shall bear its own expenses of an audit. If an audit determines that LabWare has breached its obligations under the DPA, LabWare will promptly remedy the breach at its own cost.

7. SUBPROCESSORS

7.1. General. Customer acknowledges and agrees that: (a) LabWare’s Affiliates and subcontractors may be retained as Subprocessors; and (b) LabWare and LabWare’s Affiliates and subcontractors respectively may engage third-party Subprocessors in connection with the provision of any Cloud Service. Any such Subprocessors will be permitted to obtain Personal Data only to deliver the services LabWare has retained them to provide, and they will be prohibited from using Personal Data for any other purpose.

1. LabWare shall be liable for the acts and omissions of its Subprocessors to the same extent LabWare would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
2. LabWare or one of its Affiliates or subcontractors has entered, or will enter, into a written agreement with each Subprocessor containing data protection obligations that are no less protective than the terms set forth in this DPA with respect to the protection of Personal Data and meet the requirements of Article 28(3) of the GDPR or equivalent provisions of any other Data Protection Law, to the extent applicable to the nature of the Services provided by such Subprocessor.
3. LabWare will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and
4. LabWare will make available to Customer, upon written request, a list of LabWare’s Subprocessors used to provide any applicable Cloud Service, including the name, address and role of each such Subprocessor.
5. With respect to each Subprocessor, LabWare shall, if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) LabWare, or

(b) the relevant LabWare Affiliate or subcontractor, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, before the Subprocessor first Processes Customer Personal Data and ensure that it enters into an agreement incorporating the Standard Contractual Clauses with Customer or relevant Authorized Affiliate.

7.2. New Subprocessors. LabWare’s use of Subprocessors is at its discretion, provided that: (a) LabWare will inform Customer in advance of any intended additions or replacements to the list of Subprocessors including name, address and role of the new Subprocessor; and (b) Customer may object to such changes as set out in Section 7.3.

 

7.3. Objections to New Subprocessors.

1. If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors’ processing of Personal Data, Customer may terminate its subscription to the applicable the Cloud Service for which the new Subprocessor is intended to be used by providing written notice to LabWare. Such termination shall take effect at the time determined by Customer which shall be no later than thirty (30) days from the date of LabWare’s notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this thirty (30) day period, Customer is deemed to have accepted the new Subprocessor.
2. Within the thirty (30) day period from the date of LabWare’s notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect LabWare’s right to use the new Subprocessor(s) after the thirty (30) day period.
3. Any termination under this Section 7.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.

 

7.4. Emergency Replacement. LabWare may replace a Subprocessor without advance notice where the reason for the change is outside of LabWare’s reasonable control and prompt replacement is required for security or other urgent reasons. In this case, LabWare will inform Customer of the replacement Subprocessor as soon as possible following its appointment.

 

8. INTERNATIONAL PROCESSING

8.1. Conditions for International Processing. LabWare shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which Customer is located as permitted under Data Protection Law.

8.2. Standard Contractual Clauses. Where (i) Personal Data of an EEA or Switzerland based Controller is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as safe country with an adequate level of data protection under Art. 45 of the GDPR; or where (ii) Personal Data of another Controller is processed internationally and such international Processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses; or where (iii) a transfer of Personal Data constitutes a Restricted Transfer, then:

1. LabWare and Customer will be deemed to have entered into the Standard Contractual Clauses;
2. Customer will enter into the Standard Contractual Clauses with each relevant Subprocessor as follows, either (i) Customer will join the Standard Contractual Clauses entered into by LabWare and the Subprocessor as an independent owner of rights and obligations or, (ii) the Subprocessor, represented by LabWare, will enter into the Standard Contractual Clauses with Customer).
3. Other Controllers whose use of any Cloud Service have been authorized by Customer may also enter into Standard Contractual Clauses with LabWare and/or the relevant Subprocessors in the same manner as Customer in accordance with subsections a. and b. above. In such case, Customer will enter into the Standard Contractual Clauses on behalf of the other Controllers.

8.3. Relation of the Standard Contractual Clauses to the Agreement. Nothing in this DPA shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 6 and 7, such specifications also apply in relation to the Standard Contractual Clauses.

8.4. Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the law of the country in which the relevant Controller is incorporated.

 

9. RIGHTS OF DATA SUBJECTS

9.1. LabWare shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure, data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, LabWare shall assist Customer by appropriate technical and organizational measures, to the extent possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Chapter III of the GDPR. Except to the extent required by applicable law, LabWare shall not respond to any such Data Subject Request without Customer’s prior written consent, except to confirm that the request relates to Customer.

9.2. Further, to the extent Customer, in its use of any Cloud Service, does not have the ability to address a Data Subject Request, LabWare shall upon Customer’s written request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent LabWare is legally permitted to do so and provided that such Data Subject Request is required under applicable Data Protection Laws. Any costs arising from such provision of assistance shall be the responsibility of Customer, to the extent legally permitted.

 

10. DOCUMENTATION; RECORDS OF PROCESSING

EACH PARTY IS RESPONSIBLE FOR ITS COMPLIANCE WITH ITS DOCUMENTATION REQUIREMENTS, IN PARTICULAR MAINTAINING RECORDS OF PROCESSING WHERE REQUIRED UNDER DATA PROTECTION LAW. EACH PARTY SHALL REASONABLY ASSIST THE OTHER PARTY IN ITS DOCUMENTATION REQUIREMENTS, INCLUDING PROVIDING THE INFORMATION THE OTHER PARTY NEEDS FROM IT IN A MANNER REASONABLY REQUESTED BY THE OTHER PARTY, IN ORDER TO ENABLE THE OTHER PARTY TO COMPLY WITH ANY OBLIGATIONS RELATING TO MAINTAINING RECORDS OF PROCESSING.

 

11. AUTHORIZED AFFILIATES

11.1. General. All access to and use of any Cloud Service and Customer Content by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions of the Agreement or DPA by an Authorized Affiliate shall be deemed a violation by Customer.

11.2. Communication. Customer shall remain responsible for coordinating all communication with LabWare under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

11.3. Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to this DPA with LabWare, it shall to the extent required under any Data Protection Law be entitled to exercise the rights and seek remedies under this DPA, subject to the following:

1. Except where a Data Protection Law requires the Authorized Affiliate to exercise a right or seek any remedy under this DPA against LabWare directly by itself, the parties agree that (i) Customer shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) Customer shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for itself and all of its Authorized Affiliates together.
2. The parties agree that Customer shall, when carrying out an on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on LabWare and its Subprocessors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in one single audit.

12. LIMITATION OF LIABILITY

12.1. The “Limitation of Liability” section of the Agreement shall apply to this DPA and the liability of each party and all of their respective Affiliates and subcontractors, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and LabWare, whether in contract, tort or under any other theory of liability, is subject to such “Limitation of Liability” section, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates and subcontractors under the Agreement and all DPAs together.

12.2. For the avoidance of doubt, the total liability of LabWare and its Affiliates and subcontractors for all claims from Customer and all of its Authorized Affiliates arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established hereunder, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

 

13. GENERAL TERMS

13.1. Governing Law and Jurisdiction. Without prejudice to Section 8.4, any disputes arising out of or relating to this DPA shall be governed by Delaware law. Any such disputes shall be adjudicated in the exclusive jurisdiction set forth in the Agreement.

13.2. Order of Precedence. Nothing in this DPA reduces LabWare’s or any of its Affiliate’s or subcontractor’s obligations under the Agreement or permits LabWare or any of its Affiliates or subcontractors to process Personal Data in a manner which is prohibited by the Agreement.

13.3. Changes in Data Protection Laws. Either party may: (i) by giving at least thirty

(30) days’ written notice to the other party make any variation to the Standard Contractual Clauses, as they apply to any Restricted Transfer that is required as a result of any change in, or decision of a competent authority under, a Data Protection Law to allow such Restricted Transfer to be made (or continue to be made) without breach of that Data Protection Law; and (ii) propose any other variations to this DPA which the party reasonably considers to be necessary to address the requirements of any Data Protection Law.

13.4. Notices. All notices required hereunder shall be provided pursuant to the relevant SLA.

13.5. Assignment. Without LabWare’s prior written consent, Customer may not assign or transfer this DPA (or any of its rights or obligations) to any party.

13.6. Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

13.7. Entire Agreement. This DPA, including all appendices, contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties concerning the subject matter of this DPA. This DPA may be amended solely in a writing signed by both parties.

13.8. Captions and Headings. The captions of each Article of this DPA are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation of construction of this DPA.

13.9. Severability. If any word, phrase, clause, section, article, or other provision contained in this DPA is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, section, article or provision shall be modified or amended to; (i) make this DPA valid and enforceable; and (ii) continue to reflect the original intent of the parties to this DPA. In the event any word, phrase, clause, section, article, or other provision contained in this DPA is adjudicated or otherwise found to be against public policy, void or unenforceable and cannot otherwise be modified or amended, the remainder of this DPA shall remain in full force.

13.10. No Waiver. A waiver of any breach of this DPA is not deemed a waiver of any other breach.

13.11. Cross Default. Any breach of this DPA shall constitute a material breach of the Agreement.

13.12. Costs of Compliance. To the extent permissible under a Data Protection Law, compliance by Customer and its Authorized Affiliates with the provisions of this DPA will be at no additional cost to LabWare.

13.13. Termination.

1. Subject to subsection b. below, the parties agree that this DPA and the Standard Contractual Clauses shall terminate automatically upon the termination of the Agreement.
2. Any obligation imposed on Customer or any Authorized Affiliate under this DPA in relation to the Processing of Personal Data shall survive any termination or expiration of this DPA.

END

ANNEX 1

Subject Matter

LabWare’s provision of the Cloud Service and related technical support to Customer.

 

Duration of the Processing

The applicable Term plus the period from expiry of such Term until deletion of all Customer Data in accordance with the DPA.

 

Nature and Purpose of the Processing

LabWare will process Customer Personal Data submitted, stored, sent or received by Customer, its Affiliates or Authorized Users for the purposes of providing the Cloud Services and related technical support to Customer in accordance with the Agreement and relevant SLA.

 

Data Subjects

Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, Business Partners, customers and/or other individuals having Personal Data stored in an Application hosted by LabWare as part of a Cloud Service.

 

Data Categories

The transferred Personal Data may concern, but is not limited to, the following categories of data:

• Names
• Phone Numbers
• Email Addresses
• Time Zone
• Address
• System Access/Usage/Authorization
• Company Name
• Contract Data
• Invoice Data
• Bank Account Data (including Credit or Debit Card Data)

 

EXHIBIT A

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC (or, after 25 May 2018, Article 44 et seq. of Regulation 2016/79) for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

 

Customer also on behalf of the other Controllers

(in the Clauses hereinafter referred to as the ‘data exporter’) And

LabWare

(in the Clauses hereinafter referred to as 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:

1. ‘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;
2. ‘the data exporter’ means the controller who transfers the personal data;
3. ‘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;
4. ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
5. ‘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;

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

 

Clause 2

Details of the transfer

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

 

Clause 3

Third-party beneficiary clause

 

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

 

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

1. 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;

1. 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;
2. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
3. 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;
4. that it will ensure compliance with the security measures;
5. 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;
6. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
7. 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 subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
8. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
9. that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

1. 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;

1. 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;
2. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
3. that it will promptly notify the data exporter about:
1. 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,
2. any accidental or unauthorized access, and
3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
4. 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;
5. 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;
6. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of 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;
7. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
8. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
9. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

 

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
2. to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

 

Clause 9

Governing Law

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

 

Clause 10

Variation of the contract

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

 

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by

contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

1. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
2. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

 

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

Appendix 1

Data Exporter

The Data Exporter is Customer and, where Customer allows other Controllers to also use a Cloud Service, these other Controllers are also Data Exporters.

 

Data Importer

LabWare and its Subprocessors that provide any Cloud Service.

 

Data Subjects

Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, Business Partners, customers and/or other individuals having Personal Data stored in an Application hosted by LabWare as part of a Cloud Service.

 

Data Categories

The transferred Personal Data may concern, but is not limited to, the following categories of data:

• Names
• Phone Numbers
• Email Addresses
• Time Zone
• Address
• System Access/Usage/Authorization
• Company Name
• Contract Data
• Invoice Data
• Bank Account Data (including Credit or Debit Card Data)

 

Special Data Categories

The transferred Personal Data may concern, but is not limited to, the following special categories of data:

• Racial or Ethnic Origin
• Political Opinions
• Religious or Philosophical Beliefs
• Union Membership
• Genetic Data
• Biometric Data (for the purpose of uniquely identifying a natural person
• Data Concerning Health of a Natural Person
• Data Concerning a Natural Person’s Sex Life or Sexual Orientation

 

Processing Operations / Purposes

The transferred Personal Data is subject to the following basic processing activities:

• use of Personal Data to set up, operate, upgrade, monitor, maintain and provide Cloud Services (including operational and technical support) and Consulting Services;
• communication with Authorized Users;
• storage in dedicated Data Centers;
• computer processing, including data transmission, data retrieval, data access
• execution of instructions of Customer

Appendix 2 TECHNICAL AND ORGANIZATIONAL MEASURES

The following sections define LabWare’s current technical and organizational security measures regarding Personal Data. LabWare may change these at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.

• Servers are hosted in a world class data center with ISO 27001, AICPA SOC-2 and other certifications.
• Access to the environment will be as follows:
• Physical access is controlled requiring explicit authorization. All physical access is logged/recorded.
• Only named Customer users and LabWare or its subcontractor’s personnel will have access to the environment.
• Customer access to each Cloud Service will be via a web browser.
• Only LabWare or its subcontractor’s personnel with have access to the servers pursuant to LabWare policies and procedures.