1. Introduction

This Annex details the Parties obligations on the protection of all personal data processed in the course of the fulfillment of the Agreement (“Data”) and all processing activities associated therewith which Company, Company’s employees or any third party, acting on behalf of the Company, carry out on behalf of the Customer (“Contract Processing” or "Processing").

 

2. Scope, Objectives and Duration

2.1 The scope and duration and the detailed stipulations on the type and purpose of Contract Processing shall be defined and governed by the Agreement. Further details about the scope of the Contract Processing are determined in Exhibit 1 to this Annex E. Details about the processing activities, the Data specifically, included (without limitation) in the Contract Processing and the data subjects concerned are defined and listed in Exhibit 1 to this Annex E.

2.2 Within the scope of the Agreement, Company may gain access to Data of Customer or other third parties. The Processor will use such Data provided only for the purposes defined under the Agreement and this Annex E.

2.3 Company shall process Data solely on behalf and based on written instructions of Customer. Customer remains “controller” of the Data as defined in Article 4 (7) of the General Data Protection Regulation (“GDPR”) and is responsible within the meaning of this statutory provision for the legitimacy of the processing of the Data.

2.4 It is the responsibility of Customer to disclose by transmission or make available as little Data as possible to Company in order to comply with the principle of data minimization and to distinguish in how far Data may be pseudonymized or anonymized before made available or disclosed to Company.

2.5 Regarding Customer´s individual instructions on processing, Customer shall be entitled to, in writing or in any other recordable format of notification set forth in the Agreement, modify, amend or replace such individual instructions by issuing such instructions to the point of contact designated by Company. For the avoidance of doubt, the scope and purposes of Contract Processing shall be defined and governed by the Agreement and shall not be extended by Controller’s instructions.

2.6 Company is entitled to generate necessary Data temporarily or duplicate the Data for technical procedures and safety reasons, as far as it does not modify or transform its contents. Company is not permitted to make unauthorized permanent copies of Data, unless stated otherwise in the Agreement. Company is further instructed to store and use the Data in pseudonymized form for the improvement of the Service on behalf of Customer.

2.7 Company and any person acting under the authority of Customer or of Company, who has access to personal data, shall not process such Data except on instructions from Customer, unless required to do so by European Union or Member State law.  In such case Company shall notify Customer of such legal requirement before processing, unless that law prohibits such notification on important grounds of public interest. To the extent that Data belonging to Customer is concerned, Company ensures that persons authorized to process such Data have committed themselves to confidentiality and secrecy or are under an appropriate statutory obligation of confidentiality.

2.8 The period of this Annex E is defined by the period of the Agreement.

 

3. Territory

3.1 The Processing and use of the Data primarily takes place in the territory of the Federal Republic of Germany, in a Member State of the European Union (“EU”) or in another contracting state to the Agreement on the European Economic Area (“EEA”).

3.2 Company may process Data outside the EU or the EEA ("Third Country") if and provided that (i) an appropriate level of data protection has been established for that Third Country on the basis of a valid decision by the European Commission, or (ii) the processing is performed in accordance with the applicable EU Standard Contractual Clauses ("SCC"). The provisions set forth in this Annex E remain unaffected.

 

4. Technical and Organizational Measures

4.1 Company has implemented and will apply the technical and organizational measures set forth in Exhibit 2. Customer has reviewed such measures and agrees that the measures are appropriate taking into account the state of the art, nature, scope, context and purposes of the Processing.

4.2 In the event that Customer has to carry out an assessment of the impact of the processing operations on the protection of personal data, including the consultation of the supervisory authority pursuant to Articles 35, 36 of the GDPR, Company shall spend best efforts to support Customer as far as technically and commercially feasible.

4.3 With regard to compliance with the Protective Measures agreed upon and their verified effectiveness, parties refer to Company’s existing ISO27001 certification issued by ‘TÜV Rheinland’ presented to and sufficient for Customer as proof of the appropriate guarantees, as documented in Exhibit 2 to this Annex E and as required in section 4.1.

4.4 The Protective Measures are subject to technological progress and development and Company reserves the right to implement alternative and adequate Protective Measures at any time without prior notice, provided that the level of security of such alternative Protective Measures shall not be less protective than the ones set forth in Exhibit 2. In such case, Company will notify Customer in order to enable Customer to evaluate the level of security resulting from such changes.

 

5. Subcontractors

5.1. Customer hereby generally consents to Company’s use of subcontractors. Company will provide Customer with a list of all subcontractors already assigned at the Effective Date of the Agreement within Exhibit 1 of this Annex E.

5.2. Company shall, prior to the replacement or change of subcontractors, inform Customer thereof in writing or any applicable recordable form of notification set forth in the Agreement. In the event that a replacement or change is needed du to urgent emergency or security reasons, Company may notify Customer after the change or replacement has been made. In any case, Customer shall be entitled to reasonably oppose to any change or replacement of subcontractors within ten (10) business days and for materially important reasons. Where Customer fails to oppose to such change within such period of time, Customer shall be deemed to have expressed its consent to such change or replacement. Where a materially important reason for such opposition exists and failing a bona fide resolution of this matter by the Parties, either Party shall be entitled to terminate the Agreement with immediate effect.

5.3. Where Company commissions subcontractors for the purpose of Contract Processing, Company shall contractually ensure that Company’s obligations on data protection resulting from the Agreement and this Annex E are valid and binding upon subcontractor.

 

6. Notification obligations

6.1. In each case where Company reasonably believes that an instruction would be in breach of applicable law, Company shall notify Customer of such breach without undue delay. Company shall be entitled to suspend the performance on such instruction until Customer confirms or modifies such instruction.

6.2. In the event that Company has a valid reason to believe that either itself, its employees or any third party acting on behalf of Company is being in breach of any of the data protection and/or data security provisions set forth in this Annex E or in any data protection statutory provisions, Company will notify Customer without undue delay. This applies only if Data belonging to Customer´s domain are affected. In cases where either Company itself or its employees or subcontractors are being in breach of the provisions set forth herein, Company shall or shall procure its subcontractors to implement the measures necessary for securing the Data and for mitigating potential negative consequences for the data subject.  Company shall coordinate such efforts with Customer without undue delay.

6.3. Where the Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while in Company’s control, Company shall notify Customer of such action without undue delay. Company shall further notify to all pertinent parties in such action, that any Data affected thereby is in Customer’s sole property and area of responsibility, that Data is at Customer’s sole disposition, and that Customer´s is the responsible body in the sense of the GDPR.

6.4. In the event Company becomes aware of a personal data breach Company shall notify Customer without undue delay. If Customer has to communicate a personal data breach to the data subject pursuant to Article 34 of the GDPR, Company will support Customer and provide Customer with appropriate information as far as this is technically and commercially feasible. 

 

7. Customer’s Right to Instruct and Inspection

7.1. Within the framework of the Agreement and this Annex E Customer reserves the right to issue instructions about manner, scope and processing procedures that can be concretized by giving single documented instructions. Any changes of the Data or of the procedures shall be jointly agreed upon.

7.2. If Company is not able to comply with any requests or instructions given by Customer, regardless of the reason, the processor is obliged to notify Customer immediately, who under those circumstances may postpone the Data transfer.

7.4. Where, in individual cases, audits and inspections by Customer or an independent auditor appointed by Customer are necessary, such inspections will be conducted during Company’ s normal business hours, and without interfering with Company´s operations, upon prior notice of not less than fourteen (14) calendar days. Such inspections are subject to the execution of a confidentiality agreement with provisions being at least as restrictive as the confidentiality provisions contained within the Agreement. Company shall be entitled to reject inspectors which are or act on behalf of competitors of Company. Any inspector appointed by Customer has to comply with the same confidentiality obligations as defined and applied between the Parties.

7.5. In the event the aforementioned audits or inspections shall take place more frequently than once per contract year, Company shall be entitled to requesting a remuneration for Company’s support in conducting such audits or inspections.

7.6. Where a data protection supervisory authority or another authority with statutory competence for the subject matter conducts an inspection on behalf of Customer, section 7.5. shall apply in appropriate manner.

 

8. Enquiries and claims by Data Subjects

8.1. Where a data subject asserts claims regarding its rights prescribed by the GDPR against Company  and where Company is able to correlate the data subject to Customer, based on the information provided by the data subject, Company shall refer such data subject to Customer. Company shall forward the data subject´s request to Customer. Company shall support Customer, where legally required and technically feasible. Except for cases of gross negligence and willful intent, the Company shall not be liable in cases where Customer fails to respond to the data subject´s request in total, correctly, or in timely manner.

8.2. In the event that such support leads to unreasonable efforts for Company, Customer shall remunerate any such efforts based on the man-day rate agreed to between the Parties in the Agreement or elsewhere.

8.3. Subject to the provision of section 9, in the event that a data subject asserts any claims against Customer in accordance with Article 82 of the GDPR, Company shall spend best efforts to support Customer in defending against such claims, where legally required, technically and commercially feasible. In the event that such support leads to unreasonable efforts for Company,  Customer shall remunerate any such efforts based on the man-day rate agreed to between the Parties in the Agreement or elsewhere.

 

9. Liability and Damages

9.1. In the event that a breach of any obligation set forth in this Annex E or under applicable law causes a third-party claim or leads to statutory fines or any other claims towards either Customer or Company, both are jointly liable following the principal of Art. 82 of the GDPR.

9.2. Company is solely liable towards Customer subject to the applicable liability provisions and limitations of the Agreement, for damages caused within his sphere of responsibility and only in the event that he culpably

9.2.1. did not comply with the specific statutory processing obligations set forth in the provisions of the GDPR applicable to data processors;

9.2.2. processed Customer’s Data or otherwise acted irrespective of and not in compliance with the legitimate instructions provided by Customer in regard to the Data;

9.2.3. actively infringed Customer´s legitimate instructions; or

9.2.4. is in breach of this Annex E.

9.3. In the event that Customer is liable towards the data subject, Customer may recover any damages paid to such data subject only under the provision of section 9.2.

 

10. Correction and Deletion of Data

10.1 In conformity with the instructions of Customer, Company is obliged to correct, delete or restrict the Data processed. Once a data subject refers to Company for the purpose of correction, deletion or restriction of his/her personal data and Company can uniquely assign the data subject to Customer, Company is obliged to inform Customer and pass the request to Customer immediately.

10.2 Company shall completely and irrevocably delete or destroy Data provided to him by Customer including all copies made due to technical and organizational necessities as soon as the processing of the Data has been completed or after termination of the Agreement and/or if Data storage is no longer required due to Customer´s instruction.  Insofar as Company is obliged to legal storage and retention periods, the Data shall be deleted by Company immediately by the end of such particular period. In lieu of or in addition to deletion or destruction of Data, Company and Customer can agree that Company returns all Data to Customer in a standardized and machine-readable format. In the event that Customer opts to receive the Data in such format or requires Company to apply specific deletion or erasure procedures, to hand over, sanitize or destroy any media or data carrier, the Data has been or is stored on, Company  may request remuneration for any additional efforts related to such requirements. Such remuneration shall be based on the man-day rate agreed between the parties in the Agreement or elsewhere.

 

11. Miscellaneous

11.1. In case the Parties have already signed mutual data processing agreements, these agreements shall be replaced by this Annex E.  

11.2. This Annex E is subject to law and forum of the jurisdiction and competent courts set forth in the Agreement. In the event that the Agreement does not contain a choice of law and forum provision, it shall be governed by German law and the parties hereby unconditionally submit to the exclusive jurisdiction of the Courts of Cologne, Germany.

11.3. In the event that any of these provisions of the Annex E or its amendments is or becomes ineffective the validity of the other implied provisions shall not be affected. In the event of the ineffectiveness of a provision, the Parties shall be obliged to negotiate on an effective and reasonable substitute provision with due regard to the economic purpose of the ineffective provision.

 

Exhibit 1

Scale, scope and purpose of Data Collection, Processing and Use; List of Subcontractors; Categories of Personal Data and Data subjects

 

1. Type and Scope of Data Processing

 

 

2. Type of Service

 

 

3. Place/Location of Data Storage

 

3.1 The Location of Data Storage is the German Federal Republic in case the Parties agreed upon the provision of Services by the Open-Xchange GmbH, Olper Hütte 5f, 57462 Olpe, Germany in the Order Form.

3.2 The Location of Data Storage is the USA in case the Parties agreed upon the provision of Services by theOpen-Xchange, Inc, 530 Lytton Avenue, 2nd Floor, Palo Alto, CA94301, USA in the Order Form.

 

4. Place/Location of Data Access

 

 

5. Subcontractors

 

5.1 List of Subcontractors

 

5.1 Additional Subcontractors

5.1.1 In case the Parties agreed upon the provision of Services by the Open-Xchange GmbH (OX Group), Olper Hütte 5f, 57462 Olpe, Germany in the Order Form, the Open-Xchange, Inc, 530 Lytton Avenue, 2nd Floor, Palo Alto, CA94301, USA is used as a further Subcontractor for Support and Professional Services.

5.1.2 In case the Parties agreed upon the provision of Services by the Open-Xchange, Inc. (OX Group), 530 Lytton Avenue, 2nd Floor, Palo Alto, CA94301, USA in the Order Form, the Open-Xchange GmbH, Olper Hütte 5f, 57462 Olpe, Germany is used as further Subcontractor for Support and Professional Services.

 

6. Categories of Data Subjects

 

 

7. Category of Data

 

 

8. Special Categories of Data

 

 

*OX does not actively process these data categories. These data categories are provided solely by the end users themselves within their emails or other applications within the Service. All emails are encrypted at rest.

 

9. Data Protection Officers

 

 

 

Exhibit 2

Technical and Organizational Measures

 

Last modified: 28 September 2021