Data Processing Addendum
Effective Starting May 24, 2022
This Data Processing Addendum (“DPA”) forms part of, and is subject to, the Terms of Service, currently located at https://www.pagerduty.com/terms-of-service/ made between PagerDuty, Inc. (“PagerDuty”) and Customer (the term “Customer” means the company that You represent) for the provision of the PagerDuty Services (the “Agreement”). This DPA reflects the parties’ agreement with respect to the Processing of Customer’s Personal Data in accordance with the requirements of the Data Privacy Laws and Regulations. To the extent the terms and conditions of this DPA are inconsistent with the Terms of Service or applicable Order Form, this DPA shall control as it relates to the Processing of Customer Personal Data. References to the Agreement will be construed as including this DPA. This DPA shall be effective on the effective date of the Agreement or if the Agreement was effective prior to the publishing of this version of the DPA then the Effective Starting date published above for this DPA (provided that Customer has an Agreement in place already) (“Effective Date”). Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement.
How this DPA Applies
If Customer is not a party to an Order Form nor the Agreement, this DPA is not valid and not legally binding.
Data Processing Terms
The terms used in this Addendum shall have the meanings set forth below. Except as modified below, the terms of the Agreement shall remain in full force and effect.
For the purposes of this DPA:
- ‘Customer Personal Data’ means any Customer data that is Personal Data. For purposes of this DPA, Customer Personal Data does not include personal information of employees or other representatives of Customer with whom PagerDuty has a direct business relationship.
- ‘Data Privacy Laws’ means all applicable laws, regulations, and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, breach notification, or the Processing of Personal Data, including without limitation, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”) and its implementing regulations and applicable amendments, the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), equivalent requirements in the United Kingdom including the UK Data Protection Regulation and the Data Protection Act 2018 (“UK Data Protection Law”), and the Swiss Federal Act on Data Protection (“FADP”). For the avoidance of doubt, if PagerDuty’s Processing activities involving Personal Data are not within the scope of a given Data Privacy Law, such law is not applicable for purposes of this DPA.
- ‘Data Subject’ means an identified or identifiable natural person about whom Personal Data relates.
- ‘Personal Data’ includes “personal data,” “personal information,” “personally identifiable information,” and similar terms, and such terms shall have the same meaning as defined by applicable Data Privacy Laws.
- ‘Process’ or ‘Processing’ means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or communication, restriction, erasure or destruction.
- ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.
- ‘Security Breach’ means any accidental or unlawful acquisition, destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
- ‘Standard Contractual Clauses’ (or “EU SCCs”) refers to the clauses issued pursuant to the EU Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, available at http://data.europa.eu/eli/dec_impl/2021/914/oj completed as set out below in Section 8.
Scope and Purposes of Processing.
- PagerDuty will Process Customer Personal Data solely: (1) to fulfill its obligations to Customer under the Agreement, including this Addendum; (2) on Customer’s behalf; and (3) in compliance with Data Privacy Laws. If a Data Privacy Law to which PagerDuty is subject requires PagerDuty to Process Customer Personal Data in a manner that conflicts with the terms of the Agreement or this Addendum, PagerDuty will inform Customer of that legal requirement before Processing, unless that law prohibits Customer from providing such information on important grounds of public interest within the meaning of Data Privacy Laws.
- Without limiting the foregoing, Customer directs PagerDuty, and PagerDuty agrees, to Process Customer Personal Data solely in accordance with Customer’s written instructions, as may be provided by Customer to PagerDuty from time to time.
- PagerDuty will not sell Customer Personal Data or otherwise Process Customer Personal Data for any purpose other than for the specific purposes set forth herein. For the avoidance of doubt, PagerDuty certifies that it will not Process Customer Personal Data outside of the direct business relationship between Customer and PagerDuty. For purposes of this paragraph, “sell” shall have the meaning set forth in applicable Data Privacy Laws.
Personal Data Processing Requirements. PagerDuty will:
- Ensure that the persons it authorizes to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Taking into account the nature of the Processing, PagerDuty shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a verifiable request by a Data Subject (or their lawful representatives) under applicable Data Privacy Laws (such as rights to access or delete Personal Data). In addition, to the extent Customer, in its use of the Services, does not have the ability to address such verifiable request, PagerDuty shall upon written request of Customer, use commercially reasonable efforts to assist or cause any applicable subprocessor to assist, Customer in the fulfilment of Customer’s obligations to respond to such requests, to the extent PagerDuty or the subprocessor is legally permitted to do so and the response to the verifiable request is required under applicable Data Privacy Laws. To the extent legally permitted, Customer shall be responsible for PagerDuty’s provision of such assistance, including any fees associated with the provision of additional functionality.
- Promptly notify Customer of (i) any third-party or Data Subject complaints regarding the Processing of Customer Personal Data; (ii) any Data Subject requests for exercising their rights under Data Privacy Laws; or (iii) any government or Data Subject requests for access to or information about PagerDuty’s Processing of Customer Personal Data on Customer’s behalf, unless prohibited by Data Privacy Laws. PagerDuty will provide Customer with reasonable cooperation and assistance in relation to any such request.
- Provide reasonable assistance to and cooperation with Customer for Customer’s performance of a data protection impact assessment of Processing or proposed Processing of Customer Personal Data, when required by applicable Data Privacy Laws.
- PagerDuty’s Subprocessors. A list of subprocessors for the Services as of the Effective Date is located at https://www.pagerduty.com/subprocessors/. Customer has instructed or authorized the use of subprocessors to assist PagerDuty with respect to the performance of PagerDuty’s obligations under the Agreement. Customer acknowledges and agrees that PagerDuty may engage third-party subprocessors to assist PagerDuty in providing or maintaining the Services provided under the Agreement. PagerDuty shall maintain an updated list of subprocessors and Customer may receive notification of changes to the published list of subprocessors by subscribing to the published RSS feed. To the extent that Customer objects to any new subprocessor, PagerDuty will address such objection in accordance with applicable law.
- Liability for Subprocessors. PagerDuty shall be liable for the acts and omissions of its subprocessors to the same extent PagerDuty would be liable if performing the services of each subprocessor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
- If PagerDuty processes Personal Data of residents in the European Economic Area, the United Kingdom, or Switzerland on Customer’s behalf, in order to exercise its right to object to PagerDuty’s use of a new subprocessor, Customer shall notify PagerDuty promptly in writing within ten (10) business days after PagerDuty’s updated list of subprocessors has been made available. In the event Customer objects to a new subprocessor pursuant to this subprovision, and that objection is not unreasonable, PagerDuty will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new subprocessor without unreasonably burdening the Customer. If PagerDuty is unable to make available either type of change within a reasonable time period, which shall not exceed thirty (30) days, Customer may terminate the applicable Order Form(s) with respect only to those aspects of the Services which cannot be provided by PagerDuty without the use of the objected-to new subprocessor by providing written notice to PagerDuty.
- Copies of Subprocessor Agreements. The parties agree that the copies of the subprocessor agreements that must be sent by PagerDuty to Customer pursuant to the Standard Contractual Clauses (where applicable) may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by PagerDuty beforehand; and, that such copies will be provided by PagerDuty only upon reasonable request by Customer.
PagerDuty will implement appropriate administrative, technical, physical, and organizational measures to protect Customer Personal Data, as set forth in Exhibit B. PagerDuty regularly monitors compliance with these measures. PagerDuty will not materially decrease the overall security of the Services during Customer’s subscription term.
Security Breach Management and Notification
PagerDuty maintains a security incident management procedure and shall, to the extent required under the applicable Data Privacy Law, promptly notify Customer of any actual or reasonably suspected Security Breach, by PagerDuty or its subprocessors of which PagerDuty becomes aware. Customer shall be responsible for notifying Data Subjects affected by a Security Breach unless Customer and PagerDuty make other arrangements. PagerDuty shall make reasonable endeavors to identify and remediate the cause of such Security Breach and to notify Customer no later than seventy-two (72) hours after PagerDuty’s discovery and full remediation unless otherwise required by applicable Data Privacy Law. The notification will include the following information, to the extent known by PagerDuty: (i) the nature of the Security Breach, including, where possible, the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Customer Personal Data records concerned; and (ii) measures taken or proposed to be taken by PagerDuty to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.
Deletion of Customer Personal Data
PagerDuty shall, upon Customer’s request and subject to the limitations described in the Agreement, delete Customer Personal Data in accordance with the procedures and timeframes specified in the Agreement. The parties agree that the certification of deletion of Personal Data that is described in the Standard Contractual Clauses shall be provided by PagerDuty to Customer only upon Customer’s request.
- PagerDuty shall ensure that international transfers are in compliance with all applicable Data Privacy Laws. Where PagerDuty engages in an onward transfer of Customer Personal Data, PagerDuty shall ensure that a lawful data transfer mechanism is in place prior to transferring Customer Personal Data from one country to another.
European Economic Area. Except as provided in Section
8.2(d) below, with respect to Personal Data transferred from the
European Economic Area (“EEA”) for which the GDPR governs the
international nature of the transfer, to the
extent legally required, Customer and PagerDuty are deemed to have
signed the EU SCCs, which form part of this DPA and will be deemed
completed as follows:
- Module 2 of the EU SCCs applies to transfers of Customer Personal Data from Customer (as a controller) to PagerDuty (as a processor) and Module 3 of the EU SCCs applies to transfers of Customer Personal Data from Customer (as a processor) to PagerDuty (as a subprocessor);
- Clause 7 of Modules 2 and 3 (the optional docking clause) is not included;
- Under Clause 9 of Modules 2 and 3 (Use of sub-processors), the parties select Option 2 (General written authorization). The initial list of sub-processors is set forth in Exhibit C of this DPA and PagerDuty shall propose an update to that list at least 10 days in advance of any intended additions or replacements of sub-processors in accordance with Section 4.3 of this DPA;
- Under Clause 11 of Modules 2 and 3 (Redress), the optional language requiring that data subjects be permitted to lodge a complaint with an independent dispute resolution body shall not be deemed to be included;
- Under Clause 17 of Modules 2 and 3 (Governing law), the parties choose Option 1 (the law of an EU Member State that allows for third-party beneficiary rights). The parties select the law of Ireland;
- Under Clause 18 of Modules 2 and 3 (Choice of forum and jurisdiction), the parties select the courts of Ireland;
- Annex I(A) and I(B) of Modules 2 and 3 (List of Parties) is completed as set forth in Exhibit A of this DPA;
- Under Annex I(C) of Modules 2 and 3 (Competent supervisory authority), the parties shall follow the rules for identifying such authority under Clause 13 and, to the extent legally permissible, select the Irish Data Protection Commission.
- Annex II of Modules 2 and 3 (Technical and organizational measures) is completed with Exhibit B of this DPA; and
- Annex III of Modules 2 and 3 (List of subprocessors) is intentionally not included as the parties have chosen general authorization under Clause 9.
United Kingdom. With respect to Personal Data transferred
from the United Kingdom for which the UK Data Protection Law (and not
the law in any EEA jurisdiction or Switzerland) governs the
international nature of the transfer, the International Data Transfer
Addendum to the EU Commission Standard
Contractual Clauses (available as of the Effective Date
(“UK SCCs”) forms part of this DPA and takes precedence over the rest
of this DPA as set forth in the UK SCCs. Undefined capitalized terms
used in this provision shall mean the definitions in the UK SCCs. For
purposes of the UK SCCs, they shall be deemed completed as follows:
Table 1 of the UK SCCs:
- The Parties’ details shall be the Parties and their affiliates to the extent any of them is involved in such transfer, including those set forth in the Agreement.
- The Key Contacts shall be the contacts set forth in the Agreement.
- Table 2 of the UK SCCs: The Approved EU SCCs referenced in Table 2 shall be the EU SCCs as executed by the Parties.
- Table 3 of the UK SCCs: Annex 1A, 1B, II, and III shall be set forth in Exhibits A, B, and C of this DPA.
- Table 4 of the UK SCCs: Both parties may end this DPA as set out in Section 19 of the UK SCCs.
- By entering into this DPA, the Parties are deemed to be signing the UK SCCs, the Mandatory Clauses in Part 2, and its applicable Tables and Appendix Information.
- Table 1 of the UK SCCs:
Switzerland. For transfers of Personal Data that are subject to the
FADP, the EU SCCs form part of this DPA as set forth in Section 8.2 of
this DPA, but with the following differences to the extent required by
- References to the GDPR in the EU SCCs are to be understood as references to the FADP insofar as the data transfers are subject exclusively to the FADP and not to the GDPR.
- The term “member state” in the EU SCCs shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the EU SCCs.
- References to personal data in the EU SCCs also refer to data about identifiable legal entities until the entry into force of revisions to the FADP that eliminate this broader scope.
Under Annex I(C) of the EU SCCs (Competent supervisory authority):
- Where the transfer is subject exclusively to the FADP and not the GDPR, the supervisory authority is the Swiss Federal Data Protection and Information Commissioner.
- Where the transfer is subject to both the FADP and the GDPR, the supervisory authority is the Swiss Federal Data Protection and Information Commissioner insofar as the transfer is governed by the FADP, and the supervisory authority is as set forth in Section 8.2(h) of this DPA insofar as the transfer is governed by the GDPR.
- To the extent the EU SCCs apply, nothing in this DPA or the Agreement shall be construed to prevail over any conflicting clause of the EU SCCs. Each party acknowledges that it has had the opportunity to review the EU SCCs.
- Changes in Laws. If the transfer of Customer Personal Data under the SCCs or other lawful data transfer mechanism, approved by the relevant data protection authority, ceases to be lawful or the additional safeguards are no longer effective, PagerDuty may, at its discretion: (a) cease transfers of the Customer Personal Data to, or access to such Customer Personal Data from, the relevant jurisdictions; or (b) promptly cooperate with Customer to facilitate use of an alternative lawful data transfer mechanism and alternative additional safeguards that will permit Customer to continue to benefit from the Services in compliance with applicable Data Privacy Laws relating to the protection of Customer Personal Data. If Customer and PagerDuty are unable to promptly implement such an alternative data transfer mechanism or alternative additional safeguards, then Customer may, at its option, upon written notice to PagerDuty suspend the transfer or reduce the scope of the Services to exclude the Customer Personal Data.
Audits and Certifications.
The parties agree that the audits described in the Standard Contractual Clauses shall be carried out in accordance with the following specifications: Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, PagerDuty shall make available to Customer (or Customer’s independent, third-party auditor that is not a competitor of PagerDuty and that has signed a nondisclosure agreement reasonably acceptable to PagerDuty) information regarding PagerDuty’s compliance with the obligations set forth in this DPA, and its Subprocessors (to the extent that they make such information generally available to customers). Following any notice by PagerDuty to Customer of a Security Breach, upon Customer’s reasonable belief that PagerDuty is in breach of its obligations in respect of protection of Personal Data under this DPA, or if such audit is required by Customer’s Supervisory Authority, Customer may contact PagerDuty in accordance with the notice procedure described in the Agreement to request an on-site audit of PagerDuty’s procedures relevant to the protection of Personal Data, but only to the extent required under applicable Data Privacy Laws. Any such request shall occur no more than once annually. Customer shall reimburse PagerDuty for any time expended for any such on-site audit at PagerDuty’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and PagerDuty shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by PagerDuty. Customer shall promptly notify PagerDuty with information regarding any non-compliance discovered during the course of an audit, and PagerDuty shall use commercially reasonable efforts to address any confirmed non-compliance.
Limitation of Liability.
Notwithstanding anything to the contrary in the Agreement or this DPA, each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, any Order Form or the Agreement, whether in contract, tort or under any other theory of liability, shall remain subject to the ‘Limitation of Liability’ section of the Agreement, 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, including all attachments hereto.
Order of Precedence.
This DPA is incorporated into and forms part of the Agreement. For matters not addressed under this DPA, the terms in the Agreement shall apply. With respect to the rights and obligations of the parties with respect to the Processing of Customer Personal Data, the terms of this DPA will control and the parties agree that this DPA shall replace and supersede any existing data processing addendum, attachment, exhibit, or Standard Contractual Clauses (as applicable) that the parties may have previously entered into regarding the Processing of Customer Personal Data in connection with the PagerDuty Services.
Term and Termination; Duration of Processing.
Notwithstanding expiration or termination of the Agreement, this DPA and the Standard Contractual Clauses (if applicable) will remain in effect until the deletion of all Customer Personal Data as described in this DPA and will automatically expire upon such deletion.
- First and Last Name
- Contact Information (telephone number & email address)
- Company, Position
- Login Credentials
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
The data exporter is a user of the importer’s services pursuant to their underlying commercial agreement. The data exporter acts as a controller with respect to its own personal data. To the extent permitted by the commercial agreement, the exporter also is permitted to use the contracted services as a processor on behalf of third parties.
The data importer is the provider of services to the exporter pursuant to their underlying commercial agreement. The data importer acts as the exporter’s processor.
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Categories of data subjects whose personal data is transferred: The personal data transferred concern data subjects residing in the European Economic Area, the United Kingdom and Switzerland.
Categories of personal data transferred: The personal data transferred concern the following categories of data (please specify): Data Exporter may transfer Personal Data to Vendor, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, and is not limited to the following categories of personal data:
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: The personal data transferred concerns the following special categories: None.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Continuous.
Nature of the processing: Vendor’s Processing activities shall be limited to those discussed in the underlying Agreement and the DPA between the parties.
Purpose(s) of the data transfer and further processing: The objective of the transfer and further processing of personal data by Data Importer is the access and use of Vendor services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Data will be retained for the period of time necessary to provide the Services to Customer under the Agreement and/or in accordance with applicable legal requirements.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: Same as above to the extent such information is provided to subprocessors for purposes of providing the Services.
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
See Section 8.2(h) of the DPA.
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING
TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Vendor shall comply with Exhibit B to the DPA.
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter:
Vendor shall require its subprocessors to take appropriate technical and organizational measures to provide assistance to the controller and/or data exporter that are no less restrictive than those in Exhibit B.
This Appendix forms part of the SCCs and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with SCCs (or document/legislation attached):
The PagerDuty Data Security Policy located at https://www.pagerduty.com/data-security-policy describes the technical and organizational security measures that PagerDuty, Inc. has implemented.
A list of Subprocessors for the Services as of the Effective Date is located at https://www.pagerduty.com/subprocessors/.