Data Protection Agreement

This Data Protection Agreement “DPA” becomes effective May 24, 2018.

Customer shall make available to Orca Wave and customer authorizes Orca Wave to process information including personal data for the provision of the services under the BlueWater license agreement (“Agreement”) between the customer and Orca Wave. The parties have agreed to enter into this DPA to confirm the data protection provisions relating to their relationship and so as to meet the requirements of applicable Privacy Laws.

Definitions

For the purposes of this DPA:

“BlueWater software license”, “Agreement” means the contractual relationship between Customer and Orca Wave to provide to the customer with the defined BlueWater services and software from Orca Wave and have Orca Wave perform its role of Data Processor of customer’s data.

“Orca Wave Affiliate or Business Unit” means any entity that directly or indirectly controls, is controlled by, or is under common control with Orca Wave. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Privacy Laws” mean any applicable law relating to data protection and security, including without limitation EU Data Protection Directive (EU Directive 95/46/EC of the European parliament and of the council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data), Directive on privacy in electronic communications (Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector) and General Data Protection Regulation (Regulation 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 94/46/RC) (“GDPR”)and any amendments, replacements or renewals thereof (collectively the “EU Legislation”), all binding national laws implementing the EU Legislation and other binding data protection or data security directives, laws, regulations and rulings valid at the given time including any guidance and codes of practices issued by the applicable supervisory authority.

“Security Directives” means all agreed applicable security requirements and security instructions and their updates applicable at each time and described in this “Privacy Policy”.

Note: the terms “data controller”, “data processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organizational measures” shall have the meanings given to them under applicable Privacy Laws.

Role of the Parties

The Parties understand that for the provision of the Services, a distinction is made between two types of processing of personal data: (i) the provision of platform services (i.e. the database of call data records and the logs created and managed by Orca Wave on behalf and under the supervision of Customer) for which Orca Wave will act as a data processor and agrees to comply with the respective obligations set out below.

Subject Matter, Nature and Purpose of Orca Wave's Processing of Personal Data

The subject matter, nature and purpose of the processing of personal data under this DPA is Orca Wave performance of the Services pursuant to the Agreement and as further instructed in writing by the customer in its use of the Services, unless required to do so otherwise by privacy laws, in which case to the extent permitted by privacy laws, Orca Wave shall inform the customer of this legal requirement prior to carrying out the processing. Orca Wave shall only collect or process personal data for the duration of the Agreement to the extent, and in such a manner, as is necessary for provision of the Services and in accordance with the Agreement and Privacy Laws applicable to Orca Wave in its role as data processor.

Type and Subjects of Personal Data Processed

Personal Data: The Customer may submit customer personal data to the Services, the extent of which is determined and controlled by the customer in its sole discretion, and which may include, but is not limited to the following categories of personal data:

  • Contact Information (company, email, phone and physical address)
  • First and Last name
  • Title
  • Employer
  • Connection data


Type of Data Subjects: The Customer may submit personal data to the Services, the extent of which is determined and controlled by the Customer in its sole discretion, and which may include, but is not limited to personal data relating to the following categories of data subject:
  • Customers, business partners and vendors of the customer (who are natural persons, companies and other entities)
  • Employees of contact persons of the Customer’s customers, business partners and vendors
  • Employees, agents, advisors, freelancers of the customer (who are natural persons)
  • Customer’s service users including any user of the Services, which Customer permits using the Services


Technical, Quality Assurances and Organizational Measures

Orca Wave has implemented and maintains appropriate technical and organizational measures in accordance with Article 28, 3 (c) and Article 32 in particular in relation with Article 5, 1 and 2 GDPR. Such measures include but not limited to physical and IT measures, and organizational measures to protect personal data processed against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Such measures provide a level of security that is appropriate to the risks of the processing having regard to:

  1. the state of the art technology;
  2. the costs of implementation;
  3. the nature, scope, context and purposes of processing, including the type of personal data; and
  4. risk for the rights and freedoms of natural persons that personal data relate to.

The Technical and Organizational measures are subject to technical progress and further development. In this respect, Orca Wave may implement alternative adequate measures, however, the security level of the defined measures must never be reduced. Major changes will be documented.

Quality assurances and other duties of Orca Wave: Orca Wave shall comply with the mandatory requirements referred to in Articles 28 to 33 GDPR, and ensures in particular compliance with the following requirements:
  1. Appoint a data protection officer, who performs his/her duties in compliance with Articles 38 and 39 GDPR. The data protection officers contact details are available from Orca Wave.
  2. Confidentiality in accordance with Article 28, 3 (b), Articles 29 and 32 (4) GDPR. Orca Wave entrusts only such employees with the data processing outlined in this contract who have been bound to confidentiality and have previously been familiarized with the data protection provisions relevant to their work. Orca Wave and any person acting under its authority who has access to personal data, shall not process that data unless on instructions from the customer, unless required to do so by Privacy Laws.
  3. At the customer’s cost and expense and taking into account the nature of the processing and the information available to Orca Wave, provide such information and assistance as the customer may reasonably require and within the timescales reasonably specified by the customer to assist the customer to comply with its obligations under applicable Privacy Laws which may include assisting the customer to:
    1. notify the customer of any request Orca Wave receives for a data subject relating to personal data processed;
    2. comply with its security obligations;
    3. discharge its obligations to respond to requests relating to the exercise of Data Subject rights including right of access, right to rectification, right to erasure (“right to be forgotten”) right to restriction of processing (to the extent that personal data is not accessible to the Customer through the Services);
  4. Unless prohibited by applicable law or a legally binding request of law enforcement, Orca Wave shall promptly notify the Customer of any request by, any government official, data protection supervisory authority or law enforcement authority in respect of any personal data;
  5. Orca Wave shall periodically monitor the internal processes to ensure that processing within Orca Wave area of responsibility is in accordance with the requirements of Privacy Laws and the protection of the rights of the data subject.


Audits and Inspections

In the event that the Customer, a regulator or data protection authority requires information or an audit related to the Services, then, Orca Wave agrees to submit its data processing facilities, data files and documentation needed for processing personal data to audit by the customer (or any third party such as inspection agents or auditors, selected by customer) to ascertain compliance with this DPA, subject to being given reasonable notice and compliance with Orca Wave’s auditor entering into a non-disclosure agreement directly with Orca Wave. Orca Wave agrees to provide reasonable cooperation to customer in the course of such operations including providing all relevant information and access to all equipment, software, data, files, information systems, etc. used for the performance of Services, including processing of personal data. Such audits shall be carried out at the Customer’s cost and expense.

Notification of a Data Breach

In the event of Orca Wave aware of any breach of security that results in the accidental, unauthorised or unlawful destruction or unauthorised disclosure of or access to personal data Orca Wave shall, among other things:

  1. Notify the customer in writing immediately but not later than 36 hours after becoming aware of the breach of security
  2. Assist the customer with regard to the customer’s obligation to provide information to the data subject and to provide the customer with relevant information in this regard
  3. Support the customer in consultations with data protection authority.

To the extent legally possible, Orca Wave may claim compensation for support services under this clause 11 which are not attributable to failures on the part of Orca Wave.

Customer shall retain all rights, copyright or other intellectual property rights, title and interest to any and all personal data, including all rights relating to customer data.

Orca Wave understands and agrees that such personal data constitutes customer proprietary and Confidential Information.

Deletion and return of personal data. Upon expiration of the Agreement or in the event of early termination for any reason whatsoever, Orca Wave shall promptly provide to customer all personal data held by them for the duration of the Agreement for the performance of the Services. Upon Customer’s request, Orca Wave will destroy copies of personal data held in its systems and confirm this to customer in writing unless required to keep certain personal data in order to comply with applicable laws.

Orca Wave's Obligations as Data Controller

In situations where Orca Wave will act as a Data Controller, it undertakes to comply with its obligations under applicable Privacy Laws in respect of any Personal Data processed under the Agreement. It shall process such Personal Data in connection with Voice CDRs and SMS Logs and other relevant customer data and to fulfil its associated obligations under the Agreement or as may be required by law, court order or any government or regulatory authority and in accordance with its privacy policy which is available at our Privacy Policy.

Customer's Obligations

The Customer shall comply at all times with applicable privacy laws in relation to the processing of personal data in connection with the Agreement and the Services.

Limitation of Liability

Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the Limitation of Liability section of the Agreement between Customer and OrcaWave, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and this DPA.

Security Directives

Description of the technical and organizational measures implemented by Orca Wave:

Orca Wave shall implement the measures described in this document, provided that the measures directly or indirectly contribute or can contribute to the protection of personal data under the agreement concluded between the Parties for the processing of data. The technical and organizational measures are subject to technical progress and development. In this respect Orca Wave is permitted to implement alternative adequate measures. The level of security must align with industry security best practice and not less than, the measures set forth herein. All major changes are to be agreed with the customer and documented.

Risk management - Security risk management

  • Orca Wave shall identify and evaluate security risks related to confidentiality, integrity and availability and based on such evaluation implement appropriate technical and organizational measures to ensure a level of security which is appropriate to the risk.
  • Orca Wave shall have documented processes and routines for handling risks within its operations.
  • Orca Wave shall periodically assess the risks related to information systems and processing, storing and transmitting information.

Security risk management for personal data
  • Orca Wave shall identify and evaluate security risks related to confidentiality, integrity and availability and based on such evaluation implement appropriate technical and organizational measures to ensure a level of security which is appropriate to the risk of the specific personal data types and purposes being processed by Orca Wave, including inter alia as appropriate:
    • The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services
    • The ability to restore the availability and access to the customer’s data in a timely manner in the event of a physical or technical incident
    • A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing
  • Orca Wave shall have documented processes and routines for handling risks when processing personal data on behalf of the Customer.
  • Orca Wave shall periodically assess the risks related to information systems and processing, storing and transmitting personal data.

Information security policies

  • Orca Wave shall have a defined and documented information security management system (ISMS) including an information security policy and procedures in place, which shall be approved by Orca Wave’s management. They shall be published within Orca Wave´s organization and communicated to relevant Orca Wave Personnel.
  • Orca Wave shall periodically review Orca Wave’s security policies and procedures and update them if required to ensure their compliance with the Security Directives.

Organization of information security

  • Orca Wave shall have defined and documented security roles and responsibilities within its organization.
  • Orca Wave shall appoint at least one data protection officer who has appropriate security competence and who has an overall responsibility for implementing the security measures within these security directives and who will be the contact person for the customer’s security staff.

Human resource security

  • Orca Wave shall ensure that Orca Wave personnel handles information in accordance with the level of confidentiality required under the Agreement.
  • Orca Wave shall ensure that relevant Orca Wave personnel is aware of the approved use (including use restrictions as the case may be) of information, facilities and systems under the Agreement.
  • Orca Wave shall ensure that any Orca Wave personnel performing assignments under the Agreement is trustworthy, meets established security criteria and has been, and during the term of the assignment will continue to be, subject to appropriate screening and background verification.
  • Orca Wave shall ensure that Orca Wave personnel with security responsibilities is adequately trained to carry out security related duties.
  • Orca Wave shall provide or ensure periodical security awareness training to relevant Orca Wave personnel. Such Orca Wave training shall include, without limitation:
    • How to handle customer information security (i.e. the protection of the confidentiality, integrity and availability of information);
    • Why information security is needed to protect customers information and systems;
    • The common types of security threats (such as identity theft, malware, hacking, information leakage and insider threat);
    • The importance of complying with information security policies and applying associated standards/procedures;
    • Personal responsibility for information security (such as protecting customer’s privacy-related information and reporting actual and suspected data breaches).

Access control

  • Orca Wave shall have a defined and documented access control policy for facilities, sites, network, system, application and information/data access (including physical, logical and remote access controls), an authorization process for user access and privileges, procedures for revoking access rights and an acceptable use of access privileges for Orca Wave personnel in place.
  • Orca Wave shall have a formal and documented user registration and de-registration process implemented to enable assignment of access rights.
  • Orca Wave shall assign all access privileges based on the principle of need-to-know and principle of least privilege.
  • Orca Wave shall use strong authentication (multi-factor) for remote access users and users connecting from an untrusted network.
  • Orca Wave shall ensure that Orca Wave Personnel has a personal and unique identifier (user ID), and use an appropriate authentication technique, which confirms and ensures the identity of users.

Cryptography

  • Orca Wave shall ensure proper and effective use of cryptography on information classified as confidential and secret (such as personal data) in accordance with the Customer’s confidentiality classification scheme as directed by the customer.
  • Orca Wave shall protect cryptographic keys.

Physical and environmental security

  • Orca Wave shall protect information processing facilities against external and environmental threats and hazards, including power/cabling failures and other disruptions caused by failures in supporting utilities. This includes physical perimeter and access protection.
  • Orca Wave shall protect goods received or sent on behalf of the customer from theft, manipulation and destruction.

Operations security

  • Orca Wave shall have an established change management system in place for making changes to business processes, information processing facilities and systems. The change management system shall include tests and reviews before changes are implemented, such as procedures to handle urgent changes, roll back procedures to recover from failed changes, logs that show, what has been changed, when and by whom.
  • Orca Wave shall implement malware protection to ensure that any software used for Orca Wave’s provision of the Services to the Customer is protected from malware.
  • Orca Wave shall make backup copies of critical information and test back-up copies to ensure that the information can be restored as agreed with the customer.
  • Orca Wave shall log and monitor activities, such as create, reading, copying, amendment and deletion of processed data, as well as exceptions, faults and information security events and regularly review these. Furthermore, Orca Wave shall protect and store (for at least 6 months or such period/s set by Privacy Laws) log information, and on request, deliver monitoring data to the customer. Anomalies / incidents / indicators of compromise shall be reported according to the data breach management requirements as set out below.
  • Orca Wave shall manage vulnerabilities of all relevant technologies such as operating systems, databases, applications proactively and in a timely manner.
  • Orca Wave shall establish security baselines (hardening) for all relevant technologies such as operating systems, databases, applications.
  • Orca Wave shall ensure development is segregated from test and production environment.

Communications security

  • Orca Wave shall implement network security controls such as service level, firewalling and segregation to protect information systems.

System acquisition, development and maintenance

  • Orca Wave shall implement rules for development lifecycle of software and systems including change, source control, deployment and review procedures.
  • Orca Wave shall test security functionality during development in a controlled environment.

Data breach management

  • Orca Wave shall have established procedures for data breach management.
  • Orca Wave shall inform the customer about any data breach (including but not limited to incidents in relation to the processing of personal data) as soon as possible but no later than within 36 hours after the data breach has been identified.
  • All reporting of security-related incidents shall be treated as confidential information and be encrypted, using industry standard encryption methods.
  • The data breach report shall contain at least the following information:
    1. The nature of the data breach,
    2. The nature of the personal data affected,
    3. The categories and number of data subjects concerned,
    4. The number of personal data records concerned,
    5. Measures taken to address the data breach,
    6. The possible consequences and adverse effect of the data breach, and
    7. Any other information the Customer is required to report to the relevant regulator or data subject.
  • To the extent legally possible, Orca Wave may claim compensation for support services under this clause which are not attributable to failures on the part of Orca Wave.

Business continuity management

  • Orca Wave shall identify business continuity risks and take necessary actions to control and mitigate such risks.
  • Orca Wave shall have documented processes and routines for handling business continuity.
  • Orca Wave shall ensure that information security is embedded into the business continuity plans
  • Orca Wave shall periodically assess the efficiency of its business continuity management, and compliance with availability requirements (if any).

Updates to the Data Protection Agreement will occur online at Orca Wave websites.