DATA PROCESSING AGREEMENT

Updated: Monday , September 14, 2020 - 15:25 GMT

AGREEMENT ENTERED INTO BY OUTSYSTEMS AS PROCESSOR AND ITS CUSTOMER AS CONTROLLER

WHEREAS:

A.      Customer (hereinafter “Customer”, the “Controller” or the “Company”) has entered into a Master Subscription Agreement or into an agreement with similar nature and purpose (hereinafter “Master Subscription Agreement or “Master Agreement”) with OutSystems (hereinafter “OutSystems” or the “Processor”);

B.      The execution of such Master Agreement and the provision of Services by OutSystems entails the Processing of Personal Data on behalf of the Customer; and

C.      Customer and OutSystems intend to regulate the Processing of Personal Data by OutSystems on behalf of the Customer to the extent required by the applicable Data Protection Laws.

The Customer and OutSystems (jointly referred to as “Parties”) enter into this Data Processing Agreement (also referred to as “Agreement”), which is regulated by the following clauses:

1. DEFINITIONS

Capitalized terms shall have the meaning set out below. Any capitalized terms not defined in this Data Processing Agreement shall have the meaning set out in the Master Subscription Agreement or as otherwise defined in the applicable Data Protection Laws:

Adequate Country” means a country or territory outside the EU/EEA that is recognized for the purposes of Data Protection Laws by virtue of a decision of the European Commission as offering guarantees which ensure an adequate level of protection essentially equivalent to that ensured within the EU for Personal Data, in accordance with article 45 of the GDPR.
Appropriate Safeguards” means any of the appropriate safeguards referred to in article 46 of the GDPR.
Authorized Affiliates” means the Customer’s Affiliate(s) which is bound by the terms of this Data Processing Agreement, that is subject to the Data Protection Laws and Regulations of the EU, the EEA and/or their Member States, Switzerland and/or United Kingdom, and is permitted to use the Services pursuant to the Master Subscription Agreement executed between the Customer and OutSystems but has not signed its own Order with OutSystems, being Customer’s responsibility to guarantee that Affiliate(s) is aware of the processing activities that may be carried out by OutSystems and that all authorizations from Affiliate(s) for such processing activity is collected.
Breach Event” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed as defined in article 4 (12) of the GDPR.
Controller” means the Customer or any of its Authorized Affiliates or any other entity that the Customer appoints to provide instructions to OutSystems as the natural or legal person who determines the purposes and means of Processing of the Personal Data.
Customer” means the Customer (and any of its Authorized Affiliates, if applicable) who has entered into the Master Subscription Agreement with OutSystems.
Customer’s Personal Data” means any Personal Data Processed by OutSystems or another Sub-Processor on behalf of the Customer, which is transmitted to or given access to OutSystems by the Customer pursuant to or in connection with the Master Subscription Agreement.
Data Subject” means the identified or identifiable natural person whose Personal Data is Processed.
Data Protection Laws” means all national, state, regional and/or local laws applicable to data privacy and to the Processing of Personal Data (defined below) including but not limited to, as applicable, the GDPR and the EU e-Privacy Directive (2002/58/EC) as may be amended by the proposed Regulation on Privacy and Electronic Communications, in each case as implemented into local laws applicable to the relevant Controller and/or Processor(s) with respect to the Personal Data (as relevant), any legislation that, in respect of a member state of EU, converts into domestic law the GDPR, the proposed Regulation on Privacy and Electronic Communications, or any other laws relating to data protection, the Processing of Personal Data and privacy. The term Data Protection Laws shall be deemed to include any successor legislation or replacements for any of the laws referenced in this definition and includes all replacement laws and any similar laws governing the parties’ activities in the EU or any other applicable jurisdiction and, to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom.
EU” means the European Union.
EEA” means European Economic Area.
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). References to “articles” or “chapters” of the GDPR shall be construed accordingly.
Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, a location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as defined on article 4 (1) of the GDPR, as well as the categories of data referred to in Exhibit A, which may be supplied to and Processed by Outsystems on behalf of the Controller pursuant to or in connection with the Master Subscription Agreement.
Personnel” means OutSystems’ employees or other individuals with a contractual relationship with OutSystems.
Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated 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, as defined in article 4 (2) of the GDPR.
Processed” or “Process” shall be construed accordingly.
Processor” means OutSystems as the legal person which processes Personal Data on behalf of the Controller.
Restricted Transfers” means the transfer of Personal Data to a Third Country. Includes transfers of Customer’s Personal Data to OutSystems and onward transfers of Customer’s Personal Data from OutSystems to a Sub-Processor and from a Sub-Processor to another Sub-Processor or between two establishments of a Sub-Processor.
Transfer”, “Transferred” or “Transferring” shall be construed accordingly.
Services” means the OutSystems Software provided on cloud (platform as a service) and the Support and Updates jointly provided through a Subscription and/or the Professional Services provided by OutSystems, as defined in the Master Subscription Agreement.
Standard Contractual Clauses” means the Standard Contractual Clauses for the transfer of Personal Data to Processors established in third countries, approved by Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council as included in Exhibit C, which forms part of this Data Processing Agreement and binds the Parties.
Sub-Processor” means an entity engaged by the Processor exclusively for the Processing activities to be carried out pursuant to or in connection with the Master Subscription Agreement on behalf of the Customer and in accordance with its instructions, as transmitted by the Customer.
Third Country” means a country or territory outside the EU/EEA that is not an “Adequate Country”.
User” means a natural personal authorized by the Customer to use the Services.

2. PROCESSING OF PERSONAL DATA

2.1      Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, OutSystems is the Processor and the Customer is the Controller.

2.2      Processing of Personal Data. OutSystems shall Process Personal Data as confidential information and shall only Process Personal Data on behalf of the Customer and in accordance with the requirements of the Data Protection Laws, Customer documented instructions and Exhibit A attached hereto, as necessary for the provision of the agreed Services by OutSystems. OutSystems must inform the Customer immediately in case it believes that Customer’s instructions infringe any Data Protection Laws; OutSystems may inform the Customer if it considers the instructions provided to be insufficient.

2.3      Customer’s Processing of Personal Data. Customer shall assess the use of the Services from a data protection perspective, considering its jurisdiction and applicable laws. Therefore, the Customer expressly agrees that Customer will be solely liable for compliance with any applicable laws and undertakes to perform a legal analysis, prior to the execution of the Master Subscription Agreement, in particular, to: (i) define the grounds of lawfulness to each processing activity and act accordingly, namely, obtaining and keeping proof of the necessary consents; (ii) give all the necessary information to the Data Subjects; and (iii) appoint a data protection officer as required by the GDPR or any other applicable Data Protection Laws and, if not, have at least one person responsible for data protection matters available to be contacted by Data Subjects.

2.4      Details of Processing. The subject-matter of Processing of Personal Data by OutSystems is the execution of the Master Subscription Agreement. The nature and purpose of the Processing, the categories of Data Subjects and the types of Personal Data Processed under this Data Processing Agreement are further specified in Exhibit A of this Data Processing Agreement.

2.5      Duration of the Processing. The Processing shall be carried out for the duration of the Master Subscription Agreement, unless otherwise agreed upon in writing by the Parties.

3. SECURITY

3.1      OutSystems uses appropriate technical, organizational and administrative security measures to protect the Personal Data Processed on behalf of the Customer against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction. OutSystems security measures are continually improved in line with technological developments.

3.2      OutSystems has implemented access controls to ensure that the access to and Processing of the Personal Data in relation to the provision of the Services is strictly limited to those individuals who need to know or have access to such Personal Data for the performance of their specific duties or tasks (need-to-know).

3.3      OutSystems has been certified and attested to confirm compliance with ISO 27001, ISO 27017 and ISO 27018 standards, by independent auditors.

4. OUTSYSTEMS’ PERSONNEL

4.1      OutSystems ensures that its Personnel who has access or Processes Customer’s Personal Data is subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

5. COOPERATION

5.1      Cooperation with the Customer. OutSystems shall fully cooperate with and assist the Customer in relation to the response to any notifications from a supervisory authority, in connection with the Personal Data including, without limitation, when requested by the Customer, the preparation of supporting documentation to be submitted to the relevant supervisory authority and provision of supporting documentation sufficient to evidence that OutSystems is legally bound by the terms of this Agreement.
In addition, OutSystems shall provide the Customer with all assistance and cooperation as may reasonably be deemed necessary in the event of a Breach Event, namely in the preparation of the relevant notifications and in the implementation of the necessary mitigation measures.
OutSystems shall, and shall procure that its Sub-Processors shall, promptly provide to the Customer, upon request, all the information in its possession or control in relation to the Processing of the Personal Data under this Agreement and provide all assistance and cooperation as may reasonably be required by the Customer for the latter to assess whether the Processing of the Personal Data is carried out in accordance with this Agreement.
OutSystems shall cooperate fully with and assist the Customer in relation to any notifications to be carried out or prior approvals that the latter may be required to obtain from a supervisory authority, in connection with the Personal Data whenever requested by the Customer including, without limitation, the preparation of supporting documentation.

5.2      Data Protection Impact Assessment and Prior Consultation. Where requested to do so by the Customer, OutSystems shall disclose the information reasonably required to demonstrate compliance with the applicable Data Protection Laws, including the necessary information for the Customer to carry out a privacy impact assessment of the Services and in implementing mitigation actions agreed by the Parties to address privacy risks which may have been identified.

5.3      Data Subject Requests. OutSystems shall, to the extent legally permitted, promptly notify the Customer if it receives a request from a Data Subject to exercise any of the Data Subject's rights, namely the right of access, to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
Considering the nature of the Processing, OutSystems shall assist the Customer in the fulfilment of Customers’ obligation to respond to a Data Subject Request under Data Protection Laws.
In addition, if the Customer does not have the ability to address a Data Subject Request, OutSystems shall, upon Customer’s request, provide commercially reasonable efforts to assist the Customer in responding to such Data Subject Request, to the extent OutSystems is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations.

5.4      Authority Requests. Unless prohibited by law, OutSystems shall, and shall procure that its Sub-Processors shall, promptly and in any event without undue delay notify the Customer, including by providing copies of the received documentation, if it receives any communication, correspondence or request for information (whether written or oral) from any regulatory or judicial authority relating directly or indirectly to the Personal Data, including in connection with any enforcement action or investigation carried out under the applicable Data Protection Laws.

5.5      Data Quality. OutSystems shall, and shall procure that the Sub-Processors shall, preserve the accuracy and integrity of Personal Data. OutSystems shall update, amend, correct or delete Personal Data that is inaccurate or incomplete at Customer’s request, in accordance with the provisions set forth in this Data Processing Agreement or under the applicable Data Protection Laws.

5.6      Deletion, Destruction or Return of Personal Data. Unless otherwise stipulated by the applicable Data Protection Laws, the Master Subscription Agreement or this Agreement, notwithstanding any failure of the Customer to provide written instructions, OutSystems shall, and shall procure that the Sub-Processors shall, delete or destroy all Personal Data stored, collected or Processed on behalf of the Customer, upon termination of the Master Subscription Agreement.
Following expiry or termination of the Master Subscription Agreement, and at any other time upon the Customer's written request, OutSystems shall, and shall procure that all Sub-Processors shall, immediately and permanently delete all electronic copies of the Personal Data from its/their computer systems (including, without limitation, servers, hardware and mobile devices) and from digital media in its/their possession or control; and in respect of hard copies of the Personal Data, securely destroy all originals and copies of Personal Data in its, or its Sub-Processors, possession or control, unless OutSystems is required to retain some or all of the Personal Data to comply with the applicable Data Protection Laws.

5.7      Costs. OutSystems may charge additional costs in order to comply with its cooperation duties referred in this clause 5.

6. BREACH EVENT

6.1      Breach Notification. OutSystems shall notify the Customer promptly and without undue delay after becoming aware of any Breach Event. Where and in so far as it is not possible to provide all the relevant information at the same time, the information may be provided in phases without undue delay.

6.2      Cooperation. OutSystems shall fully and promptly cooperate with the Customer in satisfying its obligations with respect to a Breach Event, as determined by the applicable Data Protection Laws.

7. SUB-PROCESSORS

7.1      Selection of Sub-Processors. OutSystems must choose Sub-Processors that provide sufficient guarantees in respect of the technical security measures and organizational measures governing the Processing. The Sub-Processors engaged must ensure compliance with the requirements and/or obligations foreseen in the Data Protection Laws and this Agreement.

7.2      Current Sub-Processors. OutSystems shall be entitled to engage Sub-Processors for the Processing of Personal Data on behalf of the Customer, provided that Customer has given its prior and written consent. For these purposes, Customer expressly consents to the engagement as Sub-Processors of the companies listed in Exhibit B, pursuant to article 28 (2) of the GDPR, and clause 11 of the Standard Contractual Clauses.

7.3      Objection. If necessary, OutSystems will quarterly update the Sub-Processors listed on Exhibit B, giving the Customer the opportunity to reasonably object to such change within 30 days counting from the first day of the quarterly update that has included the relevant Sub-processor (first day of January, April, July or October). Customer accepts to be informed of the amendments to Exhibit B through the OutSystems Website https://www.outsystems.com/legal/master-subscription-agreement/data-processing-agreement/ and undertakes to quarterly verify the list.
If within a period of 30 days after the update of the list referred to above, the Customer notifies OutSystems of any objection to the proposed appointment, the Parties shall work together to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Sub-Processor. Costs related to this change, if any, will be borne by Customer.

7.4      Engagement of Sub-Processors. With respect to each Sub-Processor, OutSystems shall ensure that the arrangement between OutSystems and any prospective Sub-Processor is governed by a written contract including terms which offer at least the same level of protection for the Personal Data as those set out in this Data Processing Agreement, and that such terms meet the requirements of article 28 (3) of the GDPR and that the Sub-Processors act in accordance with Customers’ instructions, as transmitted by OutSystems.

7.5      OutSystems liability. Where the Sub-Processor fails to fulfil its data protection obligations, OutSystems will remain liable to the Customer for the performance of such Sub-Processor’s obligations.

8. AUDIT RIGHTS

8.1      Information. OutSystems shall, upon request, make available to the Customer information reasonably necessary to demonstrate compliance with this Data Processing Agreement.

8.2      Audits. OutSystems shall allow the Customer to perform audits in relation to the Processing of Personal Data under the Master Subscription Agreement.
Customer shall give OutSystems a reasonable prior written notice of any audit or inspection to be conducted under this Section (which shall, in no event, be less than thirty (30) days’ notice, unless if required by a Supervisory Authority) and ensure that each of its mandated auditors uses its best efforts to avoid causing, and hereby undertakes to indemnify OutSystems in respect of, any damage, injury or disruption to OutSystems’ premises, equipment, Personnel, data, and business (including any interference with the confidentiality or security of the data of OutSystems’ other Customers or the availability of OutSystems’ Services to such other Customers) while its Personnel and/or its auditor’s personnel (if applicable) are on those premises in the course of any on-premise inspection.
OutSystems is not obliged to give access to its premises for the purposes of such an audit or inspection:

(i)       to any individual unless he or she presents reasonable evidence of identity and authority;
(ii)       to any auditor in relation to whom OutSystems has not given its prior written approval (which may not be unreasonably withheld);
(iii)       if the auditor does not enter into a non-disclosure agreement with OutSystems on terms acceptable to OutSystems;
(iv)       where, and to the extent that OutSystems considers, acting reasonably, that to do so would result in interference with the confidentiality or security of the data of OutSystems’ other Customers or the availability of OutSystems’ Services to such other Customers;
(v)       outside normal business hours at those premises; or
(vi)       on more than one (1) occasion in each period of twelve (12) months, except for any additional audits or inspections which:
a.       Customer reasonably considers necessary because of a Breach Event; or
b.       Customer is required to carry out in accordance to the applicable Data Protection Laws or as indicated by a Supervisory Authority, where Customer has identified the Breach Event or the relevant requirement in its notice to OutSystems of the audit or inspection.

The Parties agree that the costs of any inspection or audit to be carried out by or on behalf of the Customer pursuant to this Section 8 shall be paid in advance of such inspection or audit and, unless otherwise agreed in writing between the Parties, Customer shall bear any third party costs in connection with such inspection or audit and reimburse OutSystems for all costs incurred by OutSystems and time spent by OutSystems (at OutSystems’ then-current professional services rates) in connection with any such inspection or audit.

9. RESTRICTED TRANSFERS

9.1       The Parties hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfers from the Customer to OutSystems.
The Standard Contractual Clauses shall come into effect on commencement of the relevant Restricted Transfers.
In the event of any conflict or inconsistency between this Agreement and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail when applicable.
OutSystems agrees that no Personal Data Processed on behalf of the Customer shall be Processed by any Sub-Processor outside the EU/EEA otherwise in accordance with Chapter V of the GDPR. OutSystems shall ensure that one of the legal mechanisms to achieve adequacy in respect to the Processing is in place, as applicable: (i) Sub-Processors’ Swiss-US Privacy Shield Framework certifications (if any), or (ii) Standard Contractual Clauses.
Further to the cases abovementioned, where appropriate safeguards are applicable, OutSystems agrees that its Sub-processors outside the EU/EEA will only process Personal Data in accordance with article 49 of the GDPR.
OutSystems shall include in Exhibit B information regarding Restricted Transfers and inform the Customer of any changes to the Appropriate Safeguards.

9.2       If any Sub-Processor other than those referred to in Exhibit B is engaged by OutSystems, pursuant to Clause 7 of this Agreement, OutSystems shall inform the Customer of the existence of any Restricted Transfers and the Adequate Safeguards adopted.

10. RECORDS

OutSystems shall keep records of its Processing activities performed on behalf of the Customer.

11. LIABILITY

The liability of OutSystems and of all companies that are part of OutSystems group, taken together in the aggregate, arising out of or directly related to the infringement of Data Protection Laws or the non-compliance with their obligations towards the Processing of Personal Data in relation with this Data Processing Agreement, whether in contract, tort or under any other theory of liability and resultant from any claims, proceedings and/or actions brought against the Customer (and/or against any Authorized Affiliate, if applicable) by a competent regulatory authority, third party and/or Data Subject, which are final, unappealable and enforceable decisions, is limited to proven direct damages caused by OutSystems and/or by any of the companies that are part of OutSystems group in a maximum amount not to exceed (i) the amount paid by Customer to OutSystems under the Master Subscription Agreement during the 12 months immediately preceding the date of the claim, or (ii) €500.000,00 (five hundred thousand Euros) whichever is lower. For the avoidance of doubt, the total liability of OutSystems and of all companies that are part of OutSystems group arising out of or related to the infringement of the Data Protection Laws or the non-compliance with their obligations towards the Processing of Personal Data in relation with this Data Processing Agreement shall apply in the aggregate for all claims under both the Data Processing Agreement and all Exhibits thereto, and, in particular, shall not be understood to apply individually and severally to the Customer (and/or to any Authorized Affiliate, if applicable).

12. NOTICES

Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice):(i) by email to legal@outsystems.com or to the email address of the Customer provided by the Customer by any means (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00 am of the next business day after the date of the transmission by email. Notices hereunder will be sent to the contact and addresses set forth in the applicable Master Agreement and/or order form. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in the English language.

13. SEVERABILITY

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the Agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.

14. GOVERNING LAW AND JURISDICTION

This Data Processing Agreement shall be governed by, and construed and enforced in accordance with, the governing clause established in the Master Subscription Agreement, excluding the rules regarding the conflict of laws. In the absence of a governing clause, the governing law applicable to the OutSystems contracting party, as determined by the place of its registered office, shall prevail.

EXHIBIT A
PROCESSING ACTIVITIES

Brief description of the Processing activities

Purpose of the Processing

Categories of Data Subjects

Type of Personal Data

OutSystems will process Personal Data as necessary to perform the Services pursuant to the Master Agreement and applicable order(s). These Processing activities may include:

  • Consulting and training Services related to the provision of any OutSystems proprietary Software.
  • Implementation or customization Services and/or advice related to the provision of any OutSystems proprietary Software.
  • Maintenance (e.g. testing and applying new product or system versions, patches, updates and upgrades, etc.) and support Services related to the provision of any OutSystems proprietary Software.

The purpose of the Processing is the provision of Services by OutSystems pursuant to the Master Agreement and instructed by the Controller in this Data Processing Agreement.

May include, as applicable, Personal Data relating to the following categories of Data Subjects:

  • Customers, business partners and services providers of Controller (who are natural persons).
  • Employees or representatives of Controller’s Customers, business partners and services providers (who are natural persons).
  • Employees, agents, advisors, contractors of Controller (who are natural persons).
  • Controller’s Users authorized by Controller to use the Services (who are natural persons).

Controller may submit Personal Data to OutSystems, to the extent of which is determined and controlled by Controller in its sole discretion, and which may include, as applicable, but is not limited to the following categories of Personal Data:

  • Identification data (name).
  • Contact details (such as postal address, phone number and e-mail).
  • Professional data (such as job title and name of the company).
  • Contract data (information regarding the OutSystems Customer's order).
  • Usage data (such as data about the Customer's device and how such device interact with OutSystems and OutSystems' services).
  • Location data (such as location derived from the IP address or data that indicates where that Controller or Controller Customers’ is located with less precision, such as at a city or postal code level).
  • Content data (such as the content of the Controller and Controller’s Customers files and communications).
  • Credentials (such as passwords, passwords hints and similar security information used for authentication and account access to OutSystems' services).

EXHIBIT B
PERMITTED AFFILIATES AND SUB-PROCESSORS

Sub-Processor

Purpose

Entity Country

Appropriate safeguards
(Only applicable to Restricted transfers)

Onward Transfers
(Y/N)

OutSystems’ Partners (listed) and Affiliates

Providing the Services

Worldwide

As described in Clause 9

Y

Amazon Web Services EMEA SARL
5 Rue Plaetis
L-2338 Luxembourg
VAT ID: LU 26888617

Hosting and Cloud Infrastructure Provider

The following regions are available:

  • Asia Pacific: Sydney, Singapore, and Tokyo;
  • Europe/Middle East/Africa: Ireland, Frankfurt, and London;
  • Americas: United States (Northern Virginia and Oregon), and Canada.

As described in Clause 9

Y

Microsoft Ireland Operations, Ltd.
One Microsoft Place,
South County Industrial Park,
Leopardstown, Dublin 18, D18
P521
Ireland

Hosting and Cloud Infrastructure Provider
(Microsoft Azure)

Ireland

N/A

Y

Google Ireland Limited
Gordon House, Barrow Street
Dublin 4
Ireland

Webmail and web-based spreadsheet service provider

Ireland

N/A

Y

Zendesk
1 Grand Parade
Dublin
Ireland

Helpdesk software for customer support

Ireland

N/A

Y

Salesforce.com EMEA Limited
Floor 26 Salesforce Tower
110 Bishopsgate
London EC2N 4AY
United Kingdom

Cloud-based software for Customer Relationship Management (CRM)

United Kingdom

N/A

Y

Marketo EMEA Ltd.
Level2, Red Oak North
South County Business Park
Leopardstown
Dublin 18
Ireland

Customer Base Marketing

Ireland

N/A

Y

Atlassian Pty Ltd
Level 6, 341 George Street
Sydney NSW 2000
Australia

Professional Services Project Management (Jira tool)

Australia

As described in Clause 9

Y

Oracle America, Inc.
2955 Campus Drive Suite 100
San Mateo
CA 94403-2511
United States

Cloud financials and accounting (NetSuite software)

USA

As described in Clause 9

Y

Stitch, Inc.
1339 Chestnut Street
Suite1500
Philadelphia, PA 19107
United States

Database connector

USA

As described in Clause 9

Y

Fivetran, Inc.
405 14th Street Suite 1050 Oakland
CA 94612
United States

Database connector

USA

As described in Clause 9

Y

Splunk Inc.
3 Sheldon Square, 7th Floor
Paddington, W2 6HY
United Kingdom

Security Information Event Manager (SIEM)

United Kingdom

N/A

Y

Elasticsearch, Inc.
800 W. El Camino Real, Suite 350
Mountain View, CA 94040 USA

Cloud monitoring

USA

As described in Clause 9

Y

Snowflake Inc., 450 Concar
Drive, San Mateo, CA 94402,
United States

Cloud Data
Warehouse
Infrastructure
Provider

USA

As described in Clause 9

Y

EXHIBIT C
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

Article 1
The standard contractual clauses set out in the Annex are considered as offering adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights as required by Article 26(2) of Directive 95/46/EC.

Article 2
This Decision concerns only the adequacy of protection provided by the standard contractual clauses set out in the Annex for the transfer of personal data to processors. It does not affect the application of other national provisions implementing Directive 95/46/EC that pertain to the processing of personal data within the Member States.
This Decision shall apply to the transfer of personal data by controllers established in the European Union to recipients established outside the territory of the European Union who act only as processors.

Article 3
For the purposes of this Decision the following definitions shall apply:
(a)      special categories of data’ means the data referred to in Article 8 of Directive 95/46/EC;

(b)      supervisory authority’ means the authority referred to in Article 28 of Directive 95/46/EC;

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

(d)      data importer’ means the processor established in a third country who agrees to receive from the data exporter personal data intended for processing on the data exporter’s behalf after the transfer in accordance with his instructions and the terms of this Decision 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;

(e)      sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer and who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for the processing activities to be carried out on behalf of the data exporter after the transfer in accordance with the data exporter’s instructions, the standard contractual clauses set out in the Annex, and the terms of the written contract for sub-processing;

(f)      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;

(g)      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.

Article 4
1.       Without prejudice to their powers to take action to ensure compliance with national provisions adopted pursuant to Chapters II, III, V and VI of Directive 95/46/EC, the competent authorities in the Member States may exercise their existing powers to prohibit or suspend data flows to third countries in order to protect individuals with regard to the processing of their personal data in cases where:
(a)       it is established that the law to which the data importer or a sub-processor is subject imposes upon him requirements to derogate from the applicable data protection law which go beyond the restrictions necessary in a democratic society as provided for in Article 13 of Directive 95/46/EC where those requirements are likely to have a substantial adverse effect on the guarantees provided by the applicable data protection law and the standard contractual clauses;

(b)      a competent authority has established that the data importer or a sub-processor has not respected the standard contractual clauses in the Annex; or

(c)      there is a substantial likelihood that the standard contractual clauses in the Annex are not being or will not be complied with and the continuing transfer would create an imminent risk of grave harm to the data subjects.

2.       The prohibition or suspension pursuant to paragraph 1 shall be lifted as soon as the reasons for the suspension or prohibition no longer exist.

3.       When Member States adopt measures pursuant to paragraphs 1 and 2, they shall, without delay, inform the Commission which will forward the information to the other Member States.

Article 5
The Commission shall evaluate the operation of this Decision on the basis of available information three years after its adoption. It shall submit a report on the findings to the Committee established under Article 31 of Directive 95/46/EC. It shall include any evidence that could affect the evaluation concerning the adequacy of the standard contractual clauses in the Annex and any evidence that this Decision is being applied in a discriminatory way.

Article 6
This Decision shall apply from 15 May 2010.

Article 7
1.       Decision 2002/16/EC is repealed with effect from 15 May 2010.
2.       A contract concluded between a data exporter and a data importer pursuant to Decision 2002/16/EC before 15 May 2010 shall remain in force and effect for as long as the transfers and data-processing operations that are the subject matter of the contract remain unchanged and personal data covered by this Decision continue to be transferred between the parties. Where contracting parties decide to make changes in this regard or subcontract the processing operations that are the subject matter of the contract, they shall be required to enter into a new contract which shall comply with the standard contractual clauses set out in the Annex.

Article 8
This Decision is addressed to the Member States.

ANNEX
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

Customer, as identified in the Master Agreement in relation to which this Exhibit B forms part of and applicable order(s).

(the data exporter)

And

OutSystems, as identified in the Master Agreement in relation to which this Exhibit B forms part of and applicable order(s).

(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 (1);

(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 (2)

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;
to refer the dispute to the courts in the Member State in which the data exporter is established.

(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 (3). 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.

(1) Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
(2) 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 recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
(3) This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

Appendix 1

to the Standard Contractual Clauses

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

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

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

Customer, as identified in the Master Agreement in relation to which this Exhibit B forms part of and applicable order(s).

Data importer

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

OutSystems, which is an information technology company providing software products and services associated with its proprietary software, the OutSystems Platform.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):
May include, as applicable, Personal Data relating to the following categories of Data Subjects:

  • Customers, business partners and services providers of Controller (who are natural persons).
  • Employees or representatives of Controller’s Customers, business partners and services providers (who are natural persons).
  • Employees, agents, advisors, contractors of Controller (who are natural persons).
  • Controller’s Users authorized by Controller to use the Services (who are natural persons).

Categories of data

The personal data transferred concern the following categories of data (please specify):
May include, as applicable, but is not limited to the following categories of Personal Data:

  • Identification data (name).
  • Contact details (such as postal address, phone number and e-mail).
  • Professional data (such as job title and name of the company).
  • Contract data (information regarding the OutSystems Customer's order).
  • Usage data (such as data about the Customer's device and how such device interact with OutSystems and OutSystems' services).
  • Location data (such as location derived from the IP address or data that indicates where that Controller or Controller Customers’ is located with less precision, such as at a city or postal code level).
  • Content data (such as the content of the Controller and Controller’s Customers files and communications).
  • Credentials (such as passwords, passwords hints and similar security information used for authentication and account access to OutSystems' services).

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):
Non-applicable.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):
OutSystems will process Personal Data as necessary to perform the Services pursuant to the Master Agreement and applicable order(s). These Processing activities may include:

  • Consulting and training Services related to the provision of any OutSystems proprietary Software.
  • Implementation or customization Services and/or advice related to the provision of any OutSystems proprietary Software.
  • Maintenance (e.g. testing and applying new product or system versions, patches, updates and upgrades, etc.) and support Services related to the provision of any OutSystems proprietary Software.

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 data importer uses appropriate technical, organizational and administrative security measures to protect the personal data transmitted by the data exporter against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction. Data importer’s security measures are continually improved in line with technological developments.
The data importer has implemented access controls to ensure that the access and processing of the personal data is strictly limited to those individuals who need to know or access such personal data for the performance of their specific duties or tasks (need-to-know). The data importer has been certified and attested to confirm compliance with ISO 27001, ISO 27017 and ISO 27018 standards, by independent auditors.