The Testing Services customer agreeing to these terms (“Customer”) has entered into an agreement with either CyberTests or a third party reseller (as applicable) for the provision of the Testing Services (as amended from time to time, the “Agreement”) through which services user interface Customer has enabled the Data Sharing Setting.
These CyberTests Testing Controller-Controller Data Protection Terms (“Controller Terms”) are entered into by CyberTests and Customer. Where the Agreement is between Customer and CyberTests, these Controller Terms supplement the Agreement. Where the Agreement is between Customer and a third party reseller, these Controller Terms form a separate agreement between CyberTests and Customer.
For the avoidance of doubt, the provision of the Testing Services is governed by the Terms of Service Agreement. These Controller Terms set out the data protection provisions relating to Data Sharing only but do not otherwise apply to the provision of the Testing Services.
Subject to Section 6.2 (No Effect on Processor Terms), these Controller Terms will be effective, and replace any previously applicable terms relating to their subject matter, from the Terms Effective Date.
If you are accepting these Controller Terms on behalf of Customer, you warrant that: (a) you have full legal authority to bind Customer to these Controller Terms; (b) you have read and understand these Controller Terms; and (c) you agree, on behalf of Customer, to these Controller Terms. If you do not have the legal authority to bind Customer, please do not accept these Controller Terms.
Please do not accept these Controller Terms if you are a reseller. These Controller Terms set out the rights and obligations that apply between users of the Testing Services and CyberTests.
1. Introduction
These Controller Terms reflect the parties’ agreement on the processing of Controller Personal Data pursuant to the Data Sharing Setting.
2. Definitions and Interpretation
2.1
In these Controller Terms:
“Additional Terms" means the additional terms referred to in Appendix 1, which reflect the parties’ agreement on the terms governing the processing of Controller Personal Data in connection with certain Applicable Data Protection Legislation.
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party.
“Applicable Data Protection Legislation” means, as applicable to the processing of Controller Personal Data, any national, federal, EU, state, provincial or other privacy, data security or data protection law or regulation, including European Data Protection Legislation, the LGPD and US State Privacy Laws.
"Confidential Information" means these Controller Terms.
“Controller Data Subject” means a data subject to whom Controller Personal Data relates.
“Controller Personal Data” means personal data that is processed by a party pursuant to the Data Sharing Setting.
“End Controller” means, for each party, the ultimate controller of Controller Personal Data.
"EU GDPR" means 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.
“European Data Protection Legislation” means, as applicable: (a) the GDPR; and/or (b) the Swiss FDPA.
“GDPR” means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR.
“CyberTests” means:
* (a) where a CyberTests Entity is party to the Agreement, that CyberTests Entity.
“CyberTests Entity” means GoCyber Pte Ltd.
“LGPD” means the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais).
“Testing Services” means CyberTests Penetration Test
“Policies” means the CyberTests End User Consent Policy.
“Processor Terms” means:
* (a) where CyberTests is a party to the Agreement, or
* (b) where the Agreement is between Customer and a third party reseller, such terms reflecting a controller-processor relationship (if any) as agreed between the Customer and the third party reseller.
“Swiss FDPA” means the Federal Data Protection Act of 19 June 1992 (Switzerland).
“Terms Effective Date” means the date on which Customer clicked to accept or the parties otherwise agreed to these Controller Terms.
“UK Controller Personal Data” means Controller Personal Data of Controller Data Subjects located in the UK.
“UK GDPR” means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, and applicable secondary legislation made under that Act.
“US State Privacy Laws” means, as applicable: (i) the California Consumer Privacy Act of 2018 (including as amended by the California Privacy Rights Act of 2020) together with all implementing regulations (“CCPA”); (ii) Virginia’s Consumer Data Protection Act, Va. Code Ann. § 59.1-571 et seq.; and (iii) the Colorado Privacy Act, Colo. Rev. Stat. § 6-1-1301 et seq.; (iv) Connecticut’s Act Concerning Data Privacy and Online Monitoring, Pub. Act No. 22015; and (v) the Utah Consumer Privacy Act, Utah Code Ann. § 13-61-101 et seq.
2.2
The terms “controller”, “data subject”, “personal data”, “processing” and “processor” as used in these Controller Terms have the meanings given by either (a) Applicable Data Protection Legislation; or (b) absent any such meaning or law, the GDPR.
2.3
Any examples in these Controller Terms are illustrative and not the sole examples of a particular concept.
2.4
Any reference to a legal framework, statute or other legislative enactment is a reference to it as amended or re-enacted from time to time.
2.5
To the extent any translated version of this Agreement is inconsistent with the English version, the English version will govern.
3.1 General
These Controller Terms will only apply to the Data acquired via the provision of Penetration Testing services for which the parties agreed to these Controller Terms.
These Controller Terms will apply from the Terms Effective Date and continue while CyberTests or Customer processes Controller Personal Data, after which these Controller Terms will automatically terminate.
4. Roles and Restrictions on Processing
4.1 Independent Controllers
Subject to Section 4.4 (End Controllers), each:
* (a) is an independent controller of Controller Personal Data;
* (b) will individually determine the purposes and means of its processing of Controller Personal Data; and
* (c) will comply with the obligations applicable to it under the Applicable Data Protection Legislation regarding the processing of Controller Personal Data.
4.2 Restrictions on Processing
Section 4.1 (Independent Controllers) will not affect any restrictions on either party’s rights to use or otherwise process Controller Personal Data under the Agreement.
4.3 End User Consent
Customer will comply with the Policies in relation to the Controller Personal Data shared pursuant to the Data Sharing Setting and at all times will bear the burden of proof in establishing such compliance.
4.4 End Controllers
Without reducing either party’s obligations under these Controller Terms, each party acknowledges that: (a) the other party’s Affiliates or clients may be End Controllers; and (b) the other party may act as a processor on behalf of its End Controllers. Each party will ensure that its End Controllers comply with the Controller Terms.
4.5 Transparency
Customer acknowledges CyberTests has published information about how CyberTests uses information from sites, apps or other properties.
5. Liability
5.1
If CyberTests is:
* (a) party to the Agreement and the Agreement is governed by the laws of:
   * (i) a state of the United States of America, then, regardless of anything else in the Agreement, the total liability of either party towards the other party under or in connection with these Controller Terms will be limited to the maximum monetary or payment-based amount at which that party’s liability is capped under the Agreement (and therefore, any exclusion of indemnification claims from the Agreement’s limitation of liability will not apply to indemnification claims under the Agreement relating to the Applicable Data Protection Legislation); or
   * (ii) a jurisdiction that is not a state of the United States of America, then the liability of the parties under or in connection with these Controller Terms will be subject to the exclusions and limitations of liability in the Agreement; or
* (b) not party to the Agreement, to the extent permitted by applicable law, CyberTests will not be liable for Customer’s lost revenues or indirect, special, incidental, consequential, exemplary or punitive damages, even if CyberTests or its Affiliates have been advised of, knew or should have known that such damages do not satisfy a remedy. CyberTests’s (and its Affiliates’) total cumulative liability to Customer or any other party for any loss or damages resulting from claims, damages or actions arising out of or relating to these Controller Terms will not exceed $100 (USD).
6. Effect of Controller Terms
6.1 Order of Precedence
If there is any conflict or inconsistency between the Additional Terms, the remainder of these Controller Terms and/or the remainder of the Agreement then, subject to Sections 4.2 (Restrictions on Processing) and 6.2 (No Effect on Processor Terms), the following order of precedence will apply: (a) the Additional Terms (if applicable); (b) the remainder of these Controller Terms; and (c) the remainder of the Agreement. Subject to the amendments in these Controller Terms, the Agreement between CyberTests and Customer remains in full force and effect.
6.2 No Effect on Processor Terms
These Controller Terms will not replace or affect any Processor Terms. For the avoidance of doubt, if Customer is party to the Processor Terms in connection with the Testing Services, the Processor Terms will continue to apply to the Testing Services notwithstanding that these Controller Terms apply to Controller Personal Data processed pursuant to the Data Sharing Setting.
7. Changes to these Controller Terms
7.1 Changes to Controller Terms
CyberTests may change these Controller Terms if the change:
* (a) reflects a change in the name or form of a legal entity;
* (b) is required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency, or reflects CyberTests’s adoption of an Alternative Transfer Solution (as defined in Appendix 1A);
* (c) is as described in Section 7.2 (Changes to URLs) or
* (d) does not: (i) otherwise seek to alter the categorization of the parties as controllers of Controller Personal Data under the Applicable Data Protection Legislation; (ii) expand the scope of, or remove any restrictions on, either party’s rights to use or otherwise process Controller Personal Data; or (iii) have a material adverse impact on Customer, as reasonably determined by CyberTests.
7.2 Changes to URLs
From time to time, CyberTests may change any URL referenced in these Controller Terms and the content at any such URL.
7.3 Notification of Changes
If CyberTests intends to change these Controller Terms under Section 7.1(b) and such change will have a material adverse impact on Customer, as reasonably determined by CyberTests, then CyberTests will use commercially reasonable efforts to inform Customer at least 30 days (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect. If Customer objects to any such change, Customer may switch off the Data Sharing Setting.
8. Additional Provisions
8.1
This Section 8 (Additional Provisions) will only apply where CyberTests is not party to the Agreement.
8.2
Each party will comply with its obligations under these Controller Terms with reasonable skill and care.
8.3
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of exercising its rights or performing its obligations under these Controller Terms or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
8.4
To the fullest extent permitted by applicable law, except as expressly provided for in these Controller Terms, CyberTests makes no other warranty of any kind whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use and non-infringement.
8.5
Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
8.6
If any term (or part of a term) of these Controller Terms is invalid, illegal, or unenforceable, the rest of these Controller Terms will remain in effect.
8.7
(a) Except as set forth in section (b) below, these Controller Terms will be governed by and construed under the laws of the state of California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules and regulations, and California law, rules and regulations, California law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to these Controller Terms.
(b) Where the Agreement is between Customer and a third party reseller, and the third party reseller is organized in Europe, the Middle East or Africa, these Controller Terms will be governed by English law. Each party agrees to submit to the exclusive jurisdiction of the English courts in relation to any dispute (whether contractual or non-contractual) arising out of or in connection with these Controller Terms.
(c) In the event the Controller SCCs apply and provide for governing law that differs from the laws outlined in sections (a) and (b) above, the governing law set forth in the Controller SCCs will apply solely with respect to the Controller SCCs.
(d) The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to these Controller Terms.
8.8
All notices of termination or breach must be in English, in writing and addressed to the other party’s Legal Department. The address for notices to CyberTests’s Legal Department is legal-notices@CyberTests.com. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
8.9
No party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Controller Terms. No party may assign any part of these Controller Terms without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of these Controller Terms; (b) the assigning party remains liable for obligations under these Controller Terms if the assignee defaults on them; (c) in the case of Customer, the assigning party has transferred its Testing Services account(s) to the assignee; and (d) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
8.10
The parties are independent contractors. These Controller Terms do not create any agency, partnership, or joint venture between the parties. These Controller Terms do not confer any benefits on any third party unless they expressly state that they do.
8.11
To the extent permitted by applicable law, these Controller Terms state all terms agreed between the parties. In entering into these Controller Terms no party has relied on, and no party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly stated in these Controller Terms.
 
Appendix 1: Additional Terms for Applicable Data Protection Legislation
PART A - ADDITIONAL TERMS FOR EUROPEAN DATA PROTECTION LEGISLATION
1. Introduction
This Appendix 1A will only apply to the extent that the European Data Protection Legislation applies to the processing of Controller Personal Data.
2. Definitions
2.1 In this Appendix 1A:
“Adequate Country” means:
* (a)for data processed subject to the EU GDPR: the EEA, or a country or territory recognized as ensuring adequate data protection under the EU GDPR;
* (b)for data processed subject to the UK GDPR: the UK, or a country or territory recognized as ensuring adequate protection under the UK GDPR and the Data Protection Act 2018; and/or
* (c)for data processed subject to the Swiss FDPA: Switzerland, or a country or territory that is: (i) included in the list of the states whose legislation ensures adequate protection as published by the Swiss Federal Data Protection and Information Commissioner, or (ii) recognized as ensuring adequate protection by the Swiss Federal Council under the Swiss FDPA, in each case, other than on the basis of an optional data protection framework.
“Alternative Transfer Solution” means a solution, other than the Controller SCCs, that enables the lawful transfer of personal data to a third country in accordance with the European Data Protection Legislation, for example a data protection framework recognized as ensuring that participating entities provide adequate protection.
“Controller SCCs” means these terms.
“EEA” means the European Economic Area.
“European Controller Personal Data” means Controller Personal Data of Controller Data Subjects located in the EEA or Switzerland.
“European Laws” means, as applicable: (a) EU or EU Member State law (if the EU GDPR applies to the processing of Controller Personal Data); (b) the law of the UK or a part of the UK (if the UK GDPR applies to the processing of Controller Personal Data); and (c) the law of Switzerland (if the Swiss FDPA applies to the processing of Controller Personal Data).
“CyberTests End Controllers” means the End Controllers of Controller Personal Data processed by CyberTests.
“Permitted European Transfers” means the processing of Controller Personal Data in, or the transfer of Controller Personal Data to, an Adequate Country.
“Restricted European Transfer(s)” means transfer(s) of Controller Personal Data that are: (a) subject to the European Data Protection Legislation; and (b) not Permitted European Transfers.
“UK Controller Personal Data” means Controller Personal Data of Controller Data Subjects located in the UK.
2.2 The terms “data importer” and “data exporter” have the meanings given in the Controller SCCs.
3. CyberTests End Controllers
The CyberTests End Controllers are: (i) for European Controller Personal Data processed by CyberTests, CyberTests Ireland Limited; and (ii) for UK Controller Personal Data processed by CyberTests, CyberTests LLC. Each party will ensure that its End Controllers comply with the Controller SCCs, where applicable.
4. Data Transfers
4.1 Restricted European Transfers. Either party may make Restricted European Transfers if it complies with the provisions on Restricted European Transfers in the European Data Protection Legislation.
4.2 Alternative Transfer Solution.
* (a) If CyberTests has adopted an Alternative Transfer Solution for any Restricted European Transfers, then: (i) CyberTests will ensure that such Restricted European Transfers are made in accordance with that Alternative Transfer Solution; and (ii) paragraph 5 (Controller SCCs) of this Appendix 1A will not apply to such Restricted European Transfers.
* (b) If CyberTests has not adopted, or informs Customer that CyberTests is no longer adopting, an Alternative Transfer Solution for any Restricted European Transfers, then paragraph 5 (Controller SCCs) of this Appendix 1A will apply to such Restricted European Transfers.
4.3 Onward Transfer Provisions.
* (a) Application of Paragraph 4.3. Paragraphs 4.3(b) (Use of Data Provider Personal Data) and 4.3(c) (Protection of Data Provider Personal Data) of this Appendix 1A will only apply to the extent that:
   * (i) a party (the “Data Recipient”) processes Controller Personal Data that is made available by the other party (the “Data Provider”) in connection with the Agreement (such Controller Personal Data, “Data Provider Personal Data”);
   * (ii) the Data Provider or its Affiliate is certified under an Alternative Transfer Solution; and
   * (iii) the Data Provider notifies the Data Recipient of such Alternative Transfer Solution certification in writing.
* (b) Use of Data Provider Personal Data.
   * (i) To the extent that an applicable Alternative Transfer Solution includes an onward transfer principle, then pursuant to such onward transfer principles under the relevant Alternative Transfer Solution, the Data Recipient will only use Data Provider Personal Data in a manner consistent with the consent provided by the relevant Controller Data Subjects.
   * (ii) To the extent the Data Provider fails to obtain consent from the relevant Controller Data Subjects as required under the Agreement, the Data Recipient will not be in breach of paragraph 4.3(b)(i) if it uses Data Provider Personal Data consistent with the required consent.
* (c) Protection of Data Provider Personal Data.
   * (i) The Data Recipient will provide a level of protection for Data Provider Personal Data that is at least equivalent to that required under the applicable Alternative Transfer Solution.
   * (ii) If the Data Recipient determines that it cannot comply with paragraph 4.3(c)(i), it will: (A) notify the Data Provider in writing; and (B) either cease processing the Data Provider Personal Data or take reasonable and appropriate steps to remedy such non-compliance.
* (d) Alternative Transfer Solution Adoption and Certification. Information about CyberTests and/or its Affiliates’ adoption of, or certification under, any Alternative Transfer Solutions can be found at https://policies.CyberTests.com/privacy/frameworks. This paragraph 4.3(d) constitutes notice in writing of CyberTests and or its Affiliates’ current certifications as at the Terms Effective Date for the purpose of paragraph 4.3(a)(iii).
5. Controller SCCs
5.1 Transfers of European Controller Personal Data to Customer. To the extent that:
* (a) CyberTests transfers European Controller Personal Data to Customer; and
* (b) the transfer is a Restricted European Transfer, Customer as data importer will be deemed to have entered into the Controller SCCs with CyberTests Ireland Limited (the applicable CyberTests End Controller) as data exporter and the transfers will be subject to the Controller SCCs.
5.2 Transfers of UK Controller Personal Data to Customer. To the extent that:
* (a) CyberTests transfers UK Controller Personal Data to Customer; and
* (b) the transfer is a Restricted European Transfer, Customer as data importer will be deemed to have entered into the Controller SCCs with CyberTests LLC (the applicable CyberTests End Controller) as data exporter and the transfers will be subject to the Controller SCCs.
5.3 Transfers of European Controller Personal Data to CyberTests. The parties acknowledge that to the extent Customer transfers European Controller Personal Data to CyberTests, the Controller SCCs are not required because the address of CyberTests Ireland Limited (the applicable CyberTests End Controller) is in an Adequate Country and such transfers are Permitted European Transfers. This does not affect CyberTests’s obligations under paragraph 4.1 (Restricted European Transfers) of this Appendix 1A.
5.4 Transfers of UK Controller Personal Data to CyberTests. To the extent that Customer transfers UK Controller Personal Data to CyberTests, Customer as data exporter will be deemed to have entered into the Controller SCCs with CyberTests LLC (the applicable CyberTests End Controller) as data importer and the transfers will be subject to the Controller SCCs, because CyberTests LLC’s address is not in an Adequate Country.
5.5 Contacting CyberTests; Customer Information.
* (a) Customer may contact CyberTests Ireland Limited and/or CyberTests LLC in connection with the Controller SCCs at https://support.CyberTests.com/policies/troubleshooter/9009584 or through such other means as may be provided by CyberTests from time to time.
* (b) Customer acknowledges that CyberTests is required under the Controller SCCs to record certain information, including (i) the identity and contact details of the data importer (including any contact person with responsibility for data protection); and (ii) the technical and organizational measures implemented by the data importer. Accordingly, Customer will, where requested and as applicable to Customer, provide such information to CyberTests via such means as may be provided by CyberTests, and will ensure that all information provided is kept accurate and up-to-date.
5.6 Responding to Data Subject Enquiries. The applicable data importer will be responsible for responding to enquiries from data subjects and the supervisory authority concerning the processing of applicable Controller Personal Data by the data importer.
5.7 Data Deletion on Termination. To the extent that:
* (a) CyberTests LLC acts as data importer and Customer acts as data exporter under the Controller SCCs; and
* (b) Customer terminates the Agreement in accordance with Clause 16(c) of the Controller SCCs, then for the purposes of Clause 16(d) of the Controller SCCs, Customer directs CyberTests to delete Controller Personal Data, and, unless European Laws require storage, CyberTests will facilitate such deletion as soon as is reasonably practicable, to the extent such deletion is reasonably possible (taking into account that CyberTests is an independent Controller of such data, as well as the nature and functionality of the Testing Services).
6. Liability if Controller SCCs Apply.
If Controller SCCs apply under paragraph 5 (Controller SCCs) of this Appendix 1A, then the total combined liability of:
* (a) CyberTests, CyberTests LLC and CyberTests Ireland Limited towards Customer; and
* (b) Customer towards CyberTests, CyberTests LLC and CyberTests Ireland Limited, under or in connection with the Agreement and the Controller SCCs combined will be subject to Section 5 (Liability). Clause 12 of the Controller SCCs will not affect the previous sentence.
7. Third-Party Beneficiaries
Where CyberTests LLC and/or CyberTests Ireland Limited are not a party to the Agreement but are a party to the applicable Controller SCCs in accordance with paragraph 5 (Controller SCCs) of this Appendix 1A, CyberTests LLC and/or CyberTests Ireland Limited (as applicable) will be a third-party beneficiary of Section 4.4 (End Controllers), paragraphs 3 (CyberTests End Controllers), 5 (Controller SCCs) and 6 (Liability if Controller SCCs Apply) of this Appendix 1A. To the extent this paragraph 7 (Third-Party Beneficiaries) conflicts or is inconsistent with any other clause in the Agreement, this paragraph 7 (Third-Party Beneficiaries) will apply.
8. Precedence
8.1 If there is any conflict or inconsistency between the Controller SCCs, this Appendix 1A, the remainder of these Controller Terms and/or the remainder of the Agreement, then the Controller SCCs will prevail.
8.2 Additional Commercial Clauses. Subject to the amendments in these Controller Terms, the Agreement remains in full force and effect. Paragraphs 5.5 (Contacting CyberTests) to 5.7 (Data Deletion on Termination), and paragraph 6 (Liability if Controller SCCs Apply) of this Appendix 1A are additional commercial clauses relating to the Controller SCCs as permitted by Clause 2(a) (Effect and invariability of the Clauses) of the Controller SCCs.
8.3 No Modification of Controller SCCs. Nothing in the Agreement (including these Controller Terms) is intended to modify or contradict any Controller SCCs or prejudice the fundamental rights or freedoms of data subjects under the European Data Protection Legislation.
PART B - ADDITIONAL TERMS FOR US STATE PRIVACY LAWS
1. Introduction
CyberTests may offer and Customer may enable certain in-product settings, configurations or other functionality for the Testing Services relating to restricted data processing (“Restricted Data Processing”). This Appendix 1B reflects the parties’ agreement on the processing of Customer Personal Data and Deidentified Data (as defined below) pursuant to the Agreement in connection with the US State Privacy Laws, and is effective solely to the extent each US State Privacy Law applies.
2. Additional Definitions and Interpretation.
In this Appendix 1B:
* (a) “Customer Personal Data” means personal data that is processed by CyberTests on behalf of Customer in CyberTests’s provision of Testing Services.
* (b) “Deidentified Data” means data information that is “deidentified” (as that term is defined by the CCPA) and “de-identified data” (as defined by other US State Privacy Laws), when disclosed by one party to the other.
* (c) “Instructions” means, collectively, Customer’s instructions to CyberTests to process Customer Personal Data only in accordance with US State Privacy Laws: (a) to provide the RDP Services and any related technical support; (b) as further specified through Customer’s use of the RDP Services (including in the settings and other functionality of such RDP Services) and any related technical support; (c) as documented in the form of the Agreement, including this Appendix 1B; (d) as further documented in any other written instructions given by Customer and acknowledged by CyberTests as constituting instructions for purposes of this Appendix 1B; and (e) to process Customer Personal Data as permitted under US State Privacy Laws for service providers and processors.
* (d) “RDP Services” means Controller Services operating under Restricted Data Processing.
* (e) "Term" means the period from the Terms Effective Date until the end of CyberTests's provision of the Testing Services under the Agreement.
* (f) the terms “business”, “consumer”, “personal information”, “sale(s)”, “sell”, “service provider”, and “share” as used in this Appendix 1B have the meanings given in the US State Privacy Laws.
* (g) Customer is solely liable for its compliance with each of the US State Privacy Laws in its use of CyberTests services, including Restricted Data Processing.
3. US State Privacy Law Terms (under Restricted Data Processing).
3.1 Processing of Data.
3.1.1
* (a) Processor and Controller Responsibilities. The parties acknowledge and agree that:
   * (i) Paragraph 7 (Subject Matter and Details of the Data Processing Under US State Privacy Laws) of this Appendix 1B describes the subject matter and details of the processing of Customer Personal Data;
   * (ii) CyberTests is a service provider and processor of Customer Personal Data under the US State Privacy Laws; and
   * (iii) Customer is a controller or processor, as applicable, of Customer Personal Data under the US State Privacy Laws
* (b) Processor Customers. If Customer is a processor:
   * (i) Customer warrants on an ongoing basis that the relevant controller has authorized: (A) the Instructions, (B) Customer’s appointment of CyberTests as another processor, and (C) CyberTests’s engagement of subcontractors as described in paragraph 3.6 (Subcontractors) of this Appendix 1B;
   * (ii) Customer will immediately forward to the relevant controller any notice provided by CyberTests under paragraphs 3.3.2(a) (Incident Notification) and 3.6 (Subcontractors); and
   * (iii) Customer may make available to the relevant controller any information made available by CyberTests under paragraphs 3.3.3(c) (Customer’s Audit Rights), and 3.6 (Subcontractors).
3.1.2 Customer’s Instructions. By entering into this Appendix 1B, Customer instructs CyberTests to process Customer Personal Data only in accordance with the Instructions.
3.1.3 CyberTests’s Compliance with Instructions. CyberTests will comply with the Instructions unless prohibited under the US State Privacy Laws.
3.1.4 Additional Products. If Customer uses any product, service or application provided by CyberTests or a third party that: (a) is not part of the RDP Services; and (b) is accessible for use within the user interface of the RDP Services or is otherwise integrated with the RDP Services (an “Additional Product”), the RDP Services may allow that Additional Product to access Customer Personal Data as required for the interoperation of the Additional Product with the RDP Services. For clarity, this Appendix 1B does not apply to the processing of personal data in connection with the provision of any Additional Product used by Customer, including personal data transmitted to or from that Additional Product.
3.2. Data Deletion on Term Expiry. Customer instructs CyberTests to delete all remaining Customer Personal Data (including existing copies) from CyberTests’s systems at the end of the Term in accordance with applicable law. CyberTests will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless applicable laws require storage.
3.3. Data Security.
3.3.1 CyberTests’s Security Measures and Assistance.
* (a) CyberTests’s Security Measures. CyberTests will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (“Security Measures”). The Security Measures include measures: (i) to encrypt personal data; (ii) to help ensure the ongoing confidentiality, integrity, availability and resilience of CyberTests’s systems and services; (iii) to help restore timely access to personal data following an incident; and (iv) for regular testing of effectiveness. CyberTests may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Customer Personal Data.
* (b) Access and Compliance. CyberTests will ensure that all persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
* (c) CyberTests’s Security Assistance. CyberTests will (taking into account the nature of the processing of Customer Personal Data and the information available to CyberTests) assist Customer in meeting Customer’s (or, where Customer is a processor, the relevant controller’s) obligations in respect of security of personal data and personal data breaches, including Customer’s (or, where Customer is a processor, the relevant controller’s) obligations relating to security of personal data and personal data breaches under the US State Privacy Laws, by:
   * (i) implementing and maintaining the Security Measures in accordance with paragraph 3.3.1(a) (CyberTests’s Security Measures);
   * (ii) complying with the terms of paragraph 3.3.2 (Data Incidents); and
   * (iii) providing Customer with the rights granted under paragraph 3.3.3(c) (Customer’s Audit Rights).
3.3.2 Data Incidents
* (a) Incident Notification. If CyberTests becomes aware of a Data Incident (as defined below), CyberTests will: (i) notify Customer of the Data Incident without undue delay; and (ii) promptly take reasonable steps to minimize harm and secure Customer Personal Data. In this Appendix 1B, “Data Incident” means a breach of CyberTests’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data on systems managed by or otherwise controlled by CyberTests. “Data Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
* (b) Delivery of Notification. CyberTests will deliver its notification of any Data Incident to the email address designated by Customer, via the user interface of the RDP Services or such other means provided by CyberTests, to receive certain notifications from CyberTests relating to this Appendix 1B (“Notification Email Address”) or, at CyberTests’s discretion (including if Customer has not provided a Notification Email Address), by other direct communication (for example, phone call, email, or an in-person meeting). Customer is solely responsible for providing the Notification Email Address and ensuring that the Notification Email Address is current and valid.
* (c) Third Party Notifications. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Data Incident.
* (d) No Acknowledgement of Fault by CyberTests. CyberTests’s notification of or response to a Data Incident under this paragraph 3.3.2 (Data Incidents) will not be construed as an acknowledgement by CyberTests of any fault or liability with respect to the Data Incident.
3.3.3 Customer’s Security Responsibilities and Assessment.
* (a) Customer’s Security Responsibilities. Customer agrees that, without prejudice to CyberTests’s obligations under paragraphs 3.3.1 (CyberTests’s Security Measures and Assistance) and 3.3.2 (Data Incidents):
   * (i) Customer is responsible for its use of the RDP Services, including: (1) making appropriate use of the RDP Services to ensure a level of security appropriate to the risk in respect of Customer Personal Data; and (2) securing the account authentication credentials, systems and devices Customer uses to access the RDP Services; and
   * (ii) CyberTests has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of CyberTests’s and its subcontractors’ systems.
* (b) Customer’s Security Assessment. Customer acknowledges and agrees that the Security Measures implemented and maintained by CyberTests as set out in paragraph 3.3.1(a) (CyberTests’s Security Measures) provide a level of security appropriate to the risk in respect of Customer Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals.
* (c) Customer’s Audit Rights.
   * (i) Customer may conduct an audit to verify CyberTests’s compliance with its obligations under this Appendix 1B by requesting and reviewing (1) a certificate issued for security verification reflecting the outcome of an audit conducted by a third party auditor (e.g., SOC 2 Type II or ISO/IEC 27001 certification or a comparable certification or other security certification of an audit conducted by a third-party auditor agreed by Customer and CyberTests) within 12 months as of the date of Customer’s request and (2) any other information CyberTests determines is reasonably necessary for Customer to verify such compliance.
   * (ii) Alternatively, CyberTests may, at its sole discretion and in response to a request by Customer, initiate a third-party audit to verify CyberTests’s compliance with its obligations under this Appendix 1B. During such an audit, CyberTests will make available to the third-party auditor all information necessary to demonstrate such compliance. Where Customer requests such an audit, CyberTests may charge a fee (based on CyberTests’s reasonable costs) for any audit. CyberTests will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such audit. Customer will be responsible for any fees charged by any third-party auditor appointed by Customer to execute any such audit.
   * (iii) Nothing in this Appendix 1B will require CyberTests either to disclose to Customer or its third-party auditor, or to allow Customer or its third-party auditor to access:
       * (1) any data of any other customer of a CyberTests Entity;
       * (2) any CyberTests Entity’s internal accounting or financial information;
       * (3) any trade secret of a CyberTests Entity;
       * (4) any information that, in CyberTests's reasonable opinion, could: (A) compromise the security of any CyberTests Entity’s systems or premises; or (B) cause any CyberTests Entity to breach its obligations under the US State Privacy Laws or its security and/or privacy obligations to Customer or any third party; or
       * (5) any information that Customer or its third party auditor seeks to access for any reason other than the good faith fulfillment of Customer’s obligations under the US State Privacy Laws.
3.4 Assistance with Impact Assessments. CyberTests will (taking into account the nature of the processing and the information available to CyberTests) assist Customer in meeting Customer’s (or, where Customer is a processor, the relevant controller’s) obligations relating to data protection impact assessments and prior regulatory consultations to the extent required under the US State Privacy Laws by:
* (a) providing the Security Documentation;
* (b) providing the information contained in the Agreement (including this Appendix 1B); and
* (c) providing or otherwise making available, in accordance with CyberTests’s standard practices, other materials concerning the nature of the RDP Services and the processing of Customer Personal Data (for example, help center materials).
3.5. Data Subject Rights.
3.5.1 Responses to Data Subject Requests. If CyberTests receives a request from a data subject in relation to Customer Personal Data, Customer authorizes CyberTests to, and CyberTests hereby notifies Customer that it will:
* (a) respond directly to the data subject’s request in accordance with the standard functionality of a tool (if any) made available by a CyberTests Entity to data subjects that enables CyberTests to respond directly and in a standardized manner to certain requests from data subjects in relation to Customer Personal Data (for example, online advertising settings or an opt-out browser plugin) (“Data Subject Tool”) (if the request is made via a Data Subject Tool); or
* (b) advise the data subject to submit their request to Customer, and Customer will be responsible for responding to such request (if the request is not made via a Data Subject Tool).
3.5.2 CyberTests’s Data Subject Request Assistance. CyberTests will assist Customer in fulfilling its (or, where Customer is a processor, the relevant controller’s) obligations under the US State Privacy Laws to respond to requests for exercising the data subject’s rights, in all cases taking into account the nature of the processing of Customer Personal Data and by:
* (a) providing the functionality of the RDP Services;
* (b) complying with the commitments set out in paragraph 3.5.1 (Responses to Data Subject Requests); and
* (c) if applicable to the RDP Services, making available Data Subject Tools.
3.5.3 Rectification. If Customer becomes aware that any Customer Personal Data is inaccurate or outdated, Customer will be responsible for rectifying or deleting that data if required by the US State Privacy Laws, including (where available) by using the functionality of the RDP Services.
3.6. Subcontractors.
* (a) Customer generally authorizes CyberTests to engage other entities as subcontractors in connection with the provision of the RDP Services. When engaging any subcontractor, CyberTests will:
   * (i) ensure via a written contract that: (1) the subcontractor only accesses and uses Customer Personal Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including this Appendix 1B); and (2) if the processing of Customer Personal Data is subject to the US State Privacy Laws, ensure that the data protection obligations in this Appendix 1B are imposed on the subcontractor;
   * (ii) when engaging any new subcontractors, provide notice of such new subcontractors where required by US State Privacy Laws, and, where required by US State Privacy Laws, further provide an opportunity for Customer to object to such subcontractors; and
   * (iii) remain fully liable for all obligations subcontracted to, and all acts and omissions of, the subcontractor.
* (b) Customer may object to any new subcontractor by terminating the Agreement for convenience immediately upon written notice to CyberTests, on condition that Customer provides such notice within 90 days of being informed of the engagement of the new subcontractor as described in paragraph 3.6(a)(ii) herein.
3.7 Contacting CyberTests. Customer may contact CyberTests in relation to the exercise of its rights under this Appendix 1B or via such other means as may be provided by CyberTests from time to time.
4. US State Privacy Law Terms
4.1 Deidentified Data. With respect to Customer Personal Data processed with or without Restricted Data Processing enabled, and to the extent that one or more of the US State Privacy Laws applies to the processing of Customer Personal Data, each party will comply with the requirements for processing Deidentified Data set out in the US State Privacy Laws, with respect to any Deidentified Data it receives from the other party pursuant to the Agreement. For purposes of this paragraph 4.1 (Deidentified Data), Customer Personal Data means any personal data that is processed by a party under the Agreement in connection with its provision or use of the Testing Services.
5.CyberTests’s CCPA Obligations.
5.1 With respect to Customer Personal Data processed under Restricted Data Processing and to the extent that CCPA applies to such processing of Customer Personal Data, CyberTests will act as Customer’s service provider, and as such, unless otherwise permitted for service providers under CCPA, as reasonably determined by CyberTests:
* (a) CyberTests will not sell or share any Customer Personal Data that it obtains from Customer in connection with the Agreement;
* (b) CyberTests will not retain, use or disclose Customer Personal Data (including outside of the direct business relationship between CyberTests and Customer), other than for a business purpose under the CCPA on behalf of Customer and the specific purpose of performing the RDP Services;
* (c) CyberTests will not combine Customer Personal Data that CyberTests receives from, or on behalf of, Customer with (i) personal information that CyberTests receives from, or on behalf of, another person or persons or (ii) personal information collected from CyberTests’s own interaction with a consumer;
* (d) CyberTests will process such Customer Personal Data for the specific purpose of performing the RDP Services, as further described in the Agreement and supporting documentation (e.g., help center articles), or as otherwise permitted under the CCPA, and the parties agree that Customer is making such Customer Personal Data available to CyberTests for such purposes;
* (e) CyberTests will allow audits to verify CyberTests’s compliance with its obligations under this Appendix 1B in accordance with paragraph 3.3.3(c) (Customer’s Audit Rights) herein;
* (f) CyberTests will notify Customer if CyberTests makes a determination that it can no longer meet its obligations under the CCPA. This paragraph 5.1(f) does not reduce either party’s rights and obligations elsewhere in the Agreement;
* (g) If Customer reasonably believes that CyberTests is processing Customer Personal Data in an unauthorized manner, Customer has the right to notify CyberTests of such belief and the parties will work together in good faith to remediate the allegedly violative processing activities, if necessary; and
* (h) CyberTests will comply with applicable obligations under CCPA and will provide the same level of privacy protection as is required by CCPA.
5.2 With respect to Customer Personal Data processed without Restricted Data Processing enabled, and to the extent that CCPA applies to the processing of Customer Personal Data:
* (a) CyberTests will process such Customer Personal Data for the specific purpose of performing the Testing Services, as applicable, as further described in the Agreement and supporting documentation (e.g., help center articles), or as otherwise permitted under the CCPA, and the parties agree that Customer is making such Customer Personal Data available to CyberTests for such purposes;
* (b) CyberTests will allow audits to verify CyberTests’s compliance with its obligations under this Appendix 1B in accordance with paragraph 3.3.3(c) (Customer’s Audit Rights) herein;
* (c) CyberTests will notify Customer if CyberTests makes a determination that it can no longer meet its obligations under the CCPA;
* (d) If Customer reasonably believes that CyberTests is processing Customer Personal Data in an unauthorized manner, Customer has the right to notify CyberTests of such belief and the parties will work together in good faith to remediate the allegedly violative processing activities, if necessary; and
* (e) CyberTests will comply with applicable obligations under CCPA and will provide the same level of privacy protection as is required by CCPA.
6.Changes to this Appendix 1B.
In addition to Section 7 of the Controller Terms (Changes to these Controller Terms), as applicable, CyberTests may change this Appendix 1B without notice if the change (a) is based on applicable law, applicable regulation, a court order, or guidance issued by a governmental regulator or agency or (b) does not have a material adverse impact on Customer under the US State Privacy Laws, as reasonably determined by CyberTests.
7. Subject Matter and Details of the Data Processing Under US State Privacy Laws Subject Matter
CyberTests’s provision of the RDP Services and any related technical support to Customer.
Duration of the Processing
The Term plus the period from the end of the Term until deletion of all Customer Personal Data by CyberTests in accordance with Appendix 1B.
Nature and Purpose of the Processing
CyberTests will process (including, as applicable to the RDP Services and the Instructions collecting, recording, organizing, structuring, storing, altering, retrieving, using, disclosing, combining, erasing and destroying) Customer Personal Data for the purpose of providing the RDP Services and any related technical support to Customer in accordance with Appendix 1B, or as otherwise permitted by processors under US State Privacy Laws.
Types of Personal Data
Customer Personal Data may include the types of personal data described under the US State Privacy Laws.
Categories of Data Subjects
Customer Personal Data will concern the following categories of data subjects:
* data subjects about whom CyberTests collects personal data in its provision of the RDP Services; and/or
* data subjects about whom personal data is transferred to CyberTests in connection with the RDP Services by, at the direction of, or on behalf of Customer.
Depending on the nature of the RDP Services, these data subjects may include individuals: (a) to whom online advertising has been, or will be, directed; (b) who have visited specific websites or applications in respect of which CyberTests provides the RDP Services; and/or (c) who are customers or users of Customer’s products or services.
 
CyberTests Testing Controller-Controller Data Protection Terms, Version 4.0