This Customer Data Protection Addendum (“DPA”) is incorporated into and forms part of the Pinecone Services Agreement (the “Agreement”) by and between you (“Customer”) and Pinecone Systems, Inc. (“Pinecone”), under which Pinecone has agreed to provide the certain Hosted Services described therein (“Hosted Services”) to Customer.
This DPA forms part of the Agreement and specifies the data protection obligations of the parties that may arise from the Processing of Personal Data by Pinecone on behalf of Customer in the course of providing Hosted Services to Customer under the Agreement.
Definitions
For purposes of this DPA, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this DPA have the meanings given in the Agreement.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
Applicable Data Protection Laws means European Data Protection Laws and the CCPA, in each case, to the extent applicable to the relevant Personal Data or Processing thereof under the Agreement.
CCPA means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time.
Data Subject means an identified or identifiable natural person.
EEA means the European Economic Area.
EU means the European Union.
European Data Protection Laws means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom, in each case, to the extent it applies to the relevant Personal Data or Processing thereof under the Agreement.
GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time.
Information Security Incident means a breach of Pinecone’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Pinecone’s possession, custody or control. Information Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.
Personal Data means the Customer Data that constitutes “personal data”, “personal information” or similar information governed by Applicable Data Protection Laws. For purposes of this DPA, Personal Data does not include Personal Data of representatives of Customer with whom Pinecone has business relationships independent of the Hosted Services where Pinecone acts as a controller of such Personal Data.
Process or Processing means any operation or set of operations that 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.
Security Measures has the meaning given in Section 4.1 (Pinecone’s Security Measures).
Standard Contractual Clauses means the mandatory provisions of the standard contractual clauses for the transfer of personal data to processors established in third countries in the form set out by European Commission Decision 2010/87/EU.
Subprocessors means third parties authorized under this DPA to Process Personal Data in relation to the Hosted Services.
Third Party Subprocessors has the meaning given in Section 5 (Subprocessors) of Annex 1.
The terms controller, processor and supervisory authority as used in this DPA have the meanings given in the GDPR.
Duration and Scope of DPA
This DPA will, notwithstanding the expiration of the Agreement, remain in effect until, and automatically expire upon, Pinecone’s deletion or return of all Personal Data.
Annex 1 (EU Annex) to this DPA applies to Personal Data or the Processing thereof subject to European Data Protection Laws. Annex 2 (California Annex) to this DPA, applies to Personal Data or the Processing thereof subject to the CCPA with respect to which Customer is a Business (as defined in the CCPA).
Customer Instructions
Pinecone will Process Personal Data only in accordance with Customer’s instructions. By entering into this DPA, Customer instructs Pinecone to Process Personal Data to provide the Hosted Services. Customer acknowledges and agrees that such instruction authorizes Pinecone to Process Personal Data (a) to perform its obligations and exercise its rights under the Agreement; (b) perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement; (c) pursuant to any other written instructions given by Customer and acknowledged in writing by Pinecone as constituting instructions for purposes of this DPA; and (d) as reasonably necessary for the proper management and administration of Pinecone’s business.
Security
Pinecone Security Measures. Pinecone will implement and maintain technical and organizational measures designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data as described in Annex 3 (the “Security Measures”). Pinecone may update the Security Measures from time to time, provided the updated measures do not decrease the overall protection of Personal Data.
Information Security Incidents. If Pinecone becomes aware of an Information Security Incident, Pinecone will (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident and (b) take reasonable steps to identify the cause of such Information Security Incident and prevent a recurrence. Notifications made pursuant to this Section 4.2 will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps Pinecone recommends Customer take to address the Information Security Incident. Pinecone’s notification of or response to an Information Security Incident under this Section 4.2 will not be construed as an acknowledgement by Pinecone of any fault or liability with respect to the Information Security Incident.
Customer’s Security Responsibilities and Assessment
Customer’s Security Responsibilities. Customer agrees that, without limitation of Pinecone’s obligations under Section 4.1 (Pinecone Security Measures) and Section 4.2 (Information Security Incidents), Customer is solely responsible for its use of the Hosted Services, including (a) making appropriate use of the Hosted Services to ensure a level of security appropriate to the risk in respect of the Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Hosted Services; (c) securing Customer’s systems and devices that Pinecone uses to provide the Hosted Services; and (d) backing up Personal Data.
Customer’s Security Assessment. Customer is solely responsible for evaluating for itself whether the Hosted Services, the Security Measures and Pinecone’s commitments under this DPA will meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Data Protection Laws or other laws. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing of Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Pinecone provide a level of security appropriate to the risk in respect of the Personal Data.
Data Subject Rights
Customer’s Responsibility for Requests. If Pinecone receives any request from a Data Subject in relation to the Data Subject’s Personal Data, Pinecone will advise the Data Subject to submit the request to Customer and Customer will be responsible for responding to any such request.
Pinecone’s Data Subject Request Assistance. Pinecone will (taking into account the nature of the Processing of Personal Data) provide reasonable assistance as necessary for Customer to perform its obligation under Applicable Data Protection Laws to fulfill requests by Data Subjects to exercise their rights under Applicable Data Protection Laws, including if applicable, Customer’s obligation to respond to requests for exercising the Data Subject’s rights set out in Chapter III of the GDPR. Customer shall reimburse Pinecone for any such assistance, at Pinecone’s then-current professional Hosted Services rates, which shall be made available to Customer upon request.
Customer Responsibilities
Customer represents and warrants to Pinecone that (a) all notices have been given to, and consents and rights have been obtained from, the relevant Data Subjects and any other party as may be required by Applicable Data Protection Laws and any other laws for Processing under the Agreement; and (b) Personal Data does not and will not contain any (i) Social Security numbers or other government-issued identification numbers, (ii) protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or other information regarding a Data Subject’s medical history, mental or physical condition or medical treatment or diagnosis by a health care professional, (iii) health insurance information, (iv) biometric information, (v) passwords to any online accounts, (vi) credentials to any financial accounts, (vii) tax return data, (viii) payment card information subject to the Payment Card Industry Data Security Standard, (ix) personal data of children under 16 years of age, or (x) other information that falls within any special categories of data (as defined in the GDPR).
Notices
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Pinecone to Customer may be given (a) in accordance with any notice clause of the Agreement; (b) to Pinecone’s primary points of contact with Customer; or (c) to any email provided by Customer for the purpose of providing it with Hosted Services-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.
Miscellaneous
- Liability Cap.
The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with this DPA and the Standard Contractual Clauses if entered into as described in Annex 1, Section 4 (Transfers out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 8.2 of this DPA (Liability Cap Exclusions)
- Liability Cap Exclusions.
Nothing in Section 8.1 of this DPA (Liability Cap) will affect any party’s liability to Data Subjects under the third-party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by European Data Protection Laws, where applicable.
- Conflict.
Except as expressly modified by the DPA, the terms of the Agreement remain in full force and effect. To the extent of any conflict or inconsistency between this DPA and the other terms of the Agreement, this DPA will govern.
Annex 1
EU Annex
Processing of Data
Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the Agreement is Pinecone’s provision of the Hosted Services; (b) the duration of the Processing is from Pinecone’s receipt of Personal Data until deletion of all Personal Data by Pinecone in accordance with the Agreement; (c) the nature and purpose of the Processing is to provide the Hosted Services; (d) the data subjects to whom the Processing pertains are Customer’s employees, personnel and other individuals to whom Customer has a relationship; and (e) the categories of Personal Data are provided by Customer or its Authorized Users in connection with the Hosted Services.
Roles and Regulatory Compliance; Authorization. The parties acknowledge and agree that (a) Pinecone is a processor of that Personal Data under European Data Protection Laws; (b) Customer is a controller (or a processor acting on the instructions of a controller) of that Personal Data under European Data Protection Laws; and (c) each party will comply with the obligations applicable to it in such role under the European Data Protection Laws with respect to the Processing of that Personal Data. If Customer is a processor, Customer represents and warrants to Pinecone that Customer’s instructions and actions with respect to Personal Data, including appointment of Pinecone as another processor, have been authorized by the relevant controller.
Pinecone’s Compliance with Instructions. Pinecone will only Process Personal Data in accordance with Customer’s instructions described in this DPA unless European Data Protection Laws requires otherwise, in which case Pinecone will notify Customer (unless that law prohibits Pinecone from doing so on important grounds of public interest).
Data Deletion. Upon termination of Customer’s access to the Hosted Services, Customer instructs Pinecone to delete all Personal Data from Pinecone’s systems as soon as reasonably practicable, unless European Data Protection Laws requires otherwise.
Data Security
Pinecone Security Measures, Controls and Assistance
Pinecone Security Assistance. Pinecone will (taking into account the nature of the Processing of Personal Data and the information available to Pinecone) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Personal Data under European Data Protection Laws, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 4.2 (Information Security Incidents) of the DPA; and (c) complying with this Annex 1.
Security Compliance by Pinecone Staff. Pinecone will grant access to Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality arrangements.
Reviews and Audits of Compliance
Customer may audit Pinecone’s compliance with its obligations under this DPA up to once per year and on such other occasions as may be required by European Data Protection Laws, including where mandated by Customer’s supervisory authority. Pinecone will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit.
If a third party is to conduct the audit, Pinecone may object to the auditor if the auditor is, in Pinecone’s reasonable opinion, not independent, a competitor of Pinecone, or otherwise manifestly unsuitable. Such objection by Pinecone will require Customer to appoint another auditor or conduct the audit itself.
To request an audit, Customer must submit a detailed proposed audit plan to Pinecone at least two weeks in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Pinecone will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Pinecone security, privacy, employment or other relevant policies). Pinecone will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 2.2 shall require Pinecone to breach any duties of confidentiality.
If the controls or measures to be assessed in the requested audit are addressed in an SOC 2 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Pinecone has confirmed there are no known material changes in the controls audited, Customer agrees to accept such report lieu of requesting an audit of such controls or measures.
The audit must be conducted during regular business hours, subject to the agreed final audit plan and Pinecone’s safety, security or other relevant policies, and may not unreasonably interfere with Pinecone business activities.
Customer will promptly notify Pinecone of any non-compliance discovered during the course of an audit and provide Pinecone any audit reports generated in connection with any audit under this Section 2.2, unless prohibited by European Data Protection Laws or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA.
Any audits are at Customer’s expense. Customer shall reimburse Pinecone for any time expended by Pinecone or its Third Party Subprocessors in connection with any audits or inspections under this Section 2.2 at Pinecone’s then-current professional Hosted Services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this DPA shall be construed to require Pinecone to furnish more information about its Third Party Subprocessors in a connection with such audits than such Third Party Subprocessors make generally available to their customers.
Impact Assessments and Consultations
Pinecone will (taking into account the nature of the Processing and the information available to Pinecone) reasonably assist Customer in complying with its obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Pinecone’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement including this DPA.
Data Transfers
Data Processing Facilities. Pinecone may, subject to Section 4.2 to this Annex 1 (Transfers out of the EEA, Switzerland or United Kingdom), store and process Personal Data in the United States or anywhere Pinecone or its Subprocessors maintains facilities.
Transfers out of the EEA, Switzerland or United Kingdom. If Customer transfers Personal Data out of the EEA, Switzerland or United Kingdom to Pinecone in a country not deemed by the European Commission to have adequate data protection, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:
for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Pinecone will act as the data importer;
for purposes of Appendix 1 to the Standard Contractual Clauses, the categories of data subjects, data, special categories of data (if appropriate), and the Processing operations shall be as set out in Section 1.1 to this Annex 1 (Subject Matter and Details of Processing);
for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and that data importer may remove or redact all commercial information or clauses unrelated the Standard Contractual Clauses or their equivalent beforehand;
Customer agrees that the provisions of Section 4.2 of the DPA (Information Security Incidents) satisfy the requirements of the Standard Contractual Clauses between Customer and Pinecone under Clause 5(d)(ii);
the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.2 of this Annex 1 (Reviews and Audits of Compliance);
Customer’s authorizations in Section 5 of this Annex 1 (Subprocessors) will constitute Customer’s prior written consent to the subcontracting by Pinecone of the Processing of Personal Data if such consent is required under Clause 5(h) and 11(1) of the Standard Contractual Clauses; and
certification of deletion of Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request.
Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply to the extent an alternative recognized compliance standard for the lawful transfer of Personal Data outside the EEA, Switzerland or United Kingdom (e.g., binding corporate rules) applies to the transfer.
Subprocessors
Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Pinecone’s Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”).
Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at: https://www.pinecone.io/subprocessors/ (as may be updated by Pinecone from time to time) or such other website address as Pinecone may provide to customer from time to time (the “Subprocessor Site”).
Requirements for Subprocessor Engagement. When engaging any Subprocessor, Pinecone will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the Hosted Services provided by such Subprocessor. Pinecone shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
Opportunity to Object to Subprocessor Changes. When any new Third Party Subprocessor is engaged during the term of the Agreement, Pinecone will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating the website listed in Section 5.2 of this Annex 1 (Information about Subprocessors). If Customer objects to such engagement in a written notice to Pinecone within 15 days of being informed thereof on reasonable grounds relating to the protection of Personal Data, Customer and Pinecone will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement and cancel the Hosted Services by providing written notice to Pinecone.
Annex 2
California Annex
For purposes of this Annex 2, the terms “business,” “commercial purpose,” “sell” and “service provider” shall have the respective meanings given thereto in the CCPA, and “personal information” shall mean Personal Data that constitutes personal information governed by the CCPA.
Pinecone shall not retain, use, or disclose any Personal Data that constitutes “personal information” under the CCPA (“CA Personal Information”) for any purpose other than for the specific purpose of providing the Hosted Services, or as otherwise permitted by CCPA, including retaining, using, or disclosing the CA Personal Information for a commercial purpose other than providing the Hosted Services.
Pinecone shall not (a) sell any CA Personal Information; (b) retain, use or disclose any CA Personal Information for any purpose other than for the specific purpose of providing the Service, including retaining, using, or disclosing the CA Personal Information for a commercial purpose other than provision of the Hosted Services; or (c) retain, use or disclose the CA Personal Information outside of the direct business relationship between Pinecone and Customer. Pinecone hereby certifies that it understands its obligations under this Section 3 and will comply with them.
It is the parties’ intent that with respect to any CA Personal Information, Pinecone is a service provider.
Provision of the Hosted Services encompasses the Processing authorized by Customer’s instructions described in Section 3 of the DPA (Customer Instructions). The parties acknowledge that Pinecone’s retention, use and disclosure of CA Personal Information authorized by Customer’s instructions are integral to Pinecone’s provision of the Hosted Services and the business relationship between the parties.
Notwithstanding anything in the Agreement or any order form entered in connection therewith, the parties acknowledge and agree that Pinecone’s access to CA Personal Information or any other Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.
Annex 3
Security Measures
As from the DPA Effective Date, Pinecone will implement and maintain the Security Measures set out in this Annex 3. Pinecone may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Hosted Services.
Organizational management and dedicated staff responsible for the development, implementation and maintenance of Pinecone’s information security program.
Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Pinecone’s organization, monitoring and maintaining compliance with Pinecone’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
Data security controls which include at a minimum, but may not be limited to, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Personal Data that is transmitted over public networks (i.e. the Internet) or when transmitted wirelessly.
Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access when employment terminates or changes in job functions occur).
Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that Pinecone passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on Pinecone’s computer systems; (iii) must be changed every ninety (90) days; must have defined complexity; (iv) must have a history threshold to prevent reuse of recent passwords; and (v) newly issued passwords must be changed after first use.
Physical and environmental security of data center, server room facilities and other areas containing Personal Data designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of Pinecone facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
Change management procedures and tracking mechanisms designed to test, approve and monitor all changes to Pinecone’s technology and information assets.
Incident / problem management procedures design to allow Pinecone to investigate, respond to, mitigate and notify of events related to Pinecone’s technology and information assets.
Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.