Xactware GDPR Addendum

This Xactware GDPR Addendum (“Addendum”) supplements the Xactware Solutions, Inc. License Agreement (“EULA”), as amended from time to time. Unless otherwise defined in this Addendum, all terms defined in the EULA shall have the same meanings in the Addendum.

Part 1: Data Protection

Definitions

“Customer Personnel” means the Xactware Customer, its employees, agents, consultants, and contractors.
“Data Controller” means a person who alone or jointly with others determines the purposes and means of the Processing of Personal Information.
“Data Processor” means a person who Processes Personal Information on behalf of the Data Controller.
“Information Security Incident” means confirmed destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Information processed on behalf of the Xactware Customer resulting directly from Xactware’s or Xactware’s sub-processor’s failure to comply with Section 5(A) of this Part 1 or Article 32(1) of the GDPR that adversely impacts the Xactware Customer’s business operations.
“Personal Information” means any information relating to an identified or identifiable European Union or United Kingdom data subject that has been disclosed to Xactware by the Xactware Customer, its affiliates or their respective users in anticipation of, in connection with or incidental to the performance of services for or on behalf of any of the foregoing.
“Process”, “Processed”, or “Processing” means any operation or set of operations performed upon Personal Information, whether or not by automatic means, such as creating, collecting, procuring, obtaining, accessing, recording, organising, storing, adapting, altering, retrieving, consulting, using, disclosing or destroying the data.

Anticipated Roles and Authority to Process Personal Information

Pursuant to the Services Agreement, the Xactware Customer shall have exclusive authority to determine the purposes for and means of Processing Personal Information. Xactware shall Process Personal Information only on behalf of and in accordance with the Xactware Customer’s prior written instructions.
The parties anticipate that the Xactware Customer will act as a Data Controller and Xactware will act as a Data Processor with respect to the Processing of Personal Information under the Services Agreement.
Notwithstanding the foregoing, Xactware reserves the right to anonymise Personal Information received during the course of this engagement for product development purposes.

Disclosure of and Access to Personal Information

Xactware shall limit access to Personal Information to its employees who have a need to know the Personal Information as a condition to Xactware’s provision of the Licensed Product(s) and who are subject to appropriate confidentiality obligations in respect of Personal Information that they may access.
The Xactware Customer authorises Xactware to engage sub-processors for the processing of Personal Information in accordance with this Part 1. Xactware shall monitor that all sub-processors are bound by written agreements that require them to provide at least the same level of protection of Personal Information required by the Xactware Customer under this Part 1. A list of Xactware’s sub-processors is available upon request. The Xactware Customer authorises Xactware to transfer Personal Information outside the EEA, Switzerland, or the United Kingdom for Processing for the purposes of providing the Licensed Product(s) under the Services Agreement.
Xactware shall, to the extent legally permitted, promptly notify the Xactware Customer of any requests with respect to Personal Information received from the Xactware Customer, consumers, Customer Personnel, data subjects, or others. Xactware shall not respond to such requests without the Xactware Customer’s consent, except to confirm that the request relates to Personal Information in relation to which the Xactware Customer is the Data Controller.
Xactware will make available to the Xactware Customer the Personal Information of data subjects in a manner consistent with the Licensed Product(s) provided and in accordance with the terms of the Services Agreement. To the extent the Xactware Customer, in its use and administration of the Licensed Product(s), does not have the ability to correct, amend or delete any Personal Information in the Licensed Product(s), Xactware shall comply with the commercially reasonable requests of the Xactware Customer, to assist such actions and the Xactware Customer’s response to such data subject requests. The Xactware Customer shall be responsible for any commercially reasonable costs arising from Xactware’s provision of such assistance.
Xactware shall promptly notify the Xactware Customer of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of Personal Information. The Xactware Customer shall have the right to defend such action in lieu of and on behalf of Xactware. The Xactware Customer may, if it so chooses, seek a protective order. Xactware shall commercially reasonably cooperate with the Xactware Customer in such defence. The Xactware Customer shall be responsible for any commercially reasonable costs incurred by Xactware in connection with the provision of such cooperation.

Compliance with Privacy and Information Security Requirements

Xactware shall comply with all applicable laws, rules, regulations, directives, and governmental requirements currently in effect relating to the privacy, confidentiality, or security of Personal Information (collectively, “Privacy Laws”).
The Xactware Customer represents and warrants that it has complied with applicable Privacy Laws in all material respects in relation to all Personal Information Processed by Xactware on the Xactware Customer’s behalf pursuant to this Part 1.
Xactware shall assist the Xactware Customer in monitoring compliance with the obligations pursuant to Articles 35 and 36 of the GDPR considering the nature of the Processing and the information available to Xactware. The Xactware Customer shall be responsible for any commercially reasonable costs arising from Xactware’s provision of such assistance.

Personal Information and Information Security Safeguards

Xactware shall implement appropriate technical and organisational measures to help maintain a level of security for Personal Information appropriate to the level of risk associated with the Processing.
Xactware shall notify the Xactware Customer without undue delay after becoming aware of a confirmed Information Security Incident. Xactware shall make commercially reasonable efforts to assist the Xactware Customer in fulfilling the Xactware Customer’s obligation to notify the relevant supervisory authority and data subjects of a personal data breach under Articles 33 and 34 of the GDPR.
On expiration or earlier termination of the Services Agreement, Xactware shall delete or return Personal Information in accordance with the terms for each Licensed Product(s) set forth in the Services Agreement, unless Union, Member State, or other applicable law requires storage of the Personal Information.

Right to Monitor

For the provision of Licensed Product(s) provided in the Services Agreement, Xactware shall make available to the Xactware Customer on an annual basis, for inspection on Xactware’s premises only, the information necessary to demonstrate compliance with the obligations set forth in Article 28 of the GDPR and allow for and contribute to audits conducted by the Xactware Customer or another auditor mandated by the Xactware Customer and approved by Xactware. The Xactware Customer shall provide Xactware at least thirty (30) days’ prior written notice of its intention to carry out any such audit, and such notice shall include a detailed work plan of any matters to be audited by the Xactware Customer. Any third party mandated by the Xactware Customer to carry out an audit of Xactware pursuant to this section shall be required to enter into an appropriate confidentiality agreement with Xactware prior to commencing the audit. Any audit shall be carried out during Xactware’s standard working hours. Following completion of the audit, Xactware shall determine any appropriate remediation actions, and the Xactware Customer and Xactware shall mutually agree a date for completion of any such remediation actions. The Xactware Customer shall solely bear all costs and expenses incurred by Xactware in providing assistance in connection with such audits including the appointment and use of any third party.
Xactware shall deal promptly and appropriately with any inquiries from the Xactware Customer relating to the Processing of Personal Information subject to this Part 1.

Limitation of Liability

The limitations on liability set forth in Section 12.8 (Limitations of Licensee’s Remedies) of the EULA shall govern any claim or aggregate number of claims against Xactware arising out of or relating to this Addendum, including, but not limited to, any claims arising out of or relating to an Information Security Incident.
Xactware shall not be liable in any circumstances in respect of (i) any claim or claims made by data subjects for compensation arising solely out of or in connection with the Xactware Customer’s violation of the requirements of applicable Privacy Laws, or (ii) any fine or penalty levied by a court or supervisory authority against the Xactware Customer arising solely out of or in connection with the Xactware Customer’s violation of the requirements of applicable Privacy Laws.

Data Transfers

Data transfers outside of the United Kingdom or European Economic Area, either directly or via onward transfer, shall be governed by Part 2: Standard Contractual Clauses (Processors). The Standard Contractual Clauses will not apply to any data that is not transferred, either directly or via onward transfer, outside of the United Kingdom or European Economic Area.

Part 2: Standard Contractual Clauses (Processors)

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

The entity identified as the Xactware Customer in this Addendum
(the data exporter)

and

Xactware Solutions, Inc.
1100 West Traverse Parkway
Lehi, Utah 84043
United States of America
+1 (801) 764-5900
legaladministrator2@verisk.com

(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:

‘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 data¹;
‘the data exporter’ means the controller who transfers the personal data;
‘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 maintaining adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
‘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;
‘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;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised 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

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.
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.
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.
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:

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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
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, unauthorised 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;
that it will ensure compliance with the security measures;
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;
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;
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;
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
that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer²

The data importer agrees and warrants:

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;
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;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
that it will promptly notify the data exporter about:

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;
any accidental or unauthorised access; and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

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;
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;
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;
that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the sub-processor will be carried out in accordance with Clause 11;
to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

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.
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.
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

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

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.

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

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.
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.
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

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 Clauses³. 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.
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.
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.
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

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.
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.

Footnotes

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

Data importer

The data importer is Xactware Solutions, Inc.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Data exporter’s customers who have made a claim for an insured loss. Individuals nominated by data exporter’s customer to act on their behalf for a claim relating to data exporter’s customer.

Categories of data

The personal data transferred concern the following categories of data (please specify):

Name, home or business address, phone number, email address, IP address, claim number, policy number, geo code of property location, and images and live and recorded video (which may include personal data).

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

No special category data or criminal conviction data shall be processed.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

Processing relates to computer software used for the purpose of initiating and settling commercial and residential property insurance claims.

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

The technical and organisational security measures implemented by the data importer are described in Verisk’s Approach to Cybersecurity, available at https://www.verisk.com/siteassets/media/corporate-social-responsibility/downloads/verisk-approach-to-cybersecurity.pdf, and Xactware Information Security Frequently Asked Questions, available at https://www.verisk.com/csr/governance/managing-and-protecting-data/. These documents, as amended from time to time, are incorporated herein by reference.

Xactware GDPR Addendum

Part 1: Data Protection

Definitions

Anticipated Roles and Authority to Process Personal Information

Disclosure of and Access to Personal Information

Compliance with Privacy and Information Security Requirements

Personal Information and Information Security Safeguards

Right to Monitor

Limitation of Liability

Data Transfers

Part 2: Standard Contractual Clauses (Processors)

Clause 1

Definitions

Clause 2

Details of the transfer

Clause 3

Third-party beneficiary clause

Clause 4

Obligations of the data exporter

Clause 5

Obligations of the data importer2

Clause 6

Liability

Clause 7

Mediation and jurisdiction

Clause 8

Cooperation with supervisory authorities

Clause 9

Governing law

Clause 10

Variation of the contract

Clause 11

Sub-processing

Clause 12

Obligation after the termination of personal data-processing services

Footnotes

Appendix 1 to the Standard Contractual Clauses

Data exporter

Data importer

Data subjects

Categories of data

Special categories of data (if appropriate)

Processing operations

Appendix 2 to the Standard Contractual Clauses

Obligations of the data importer²