LivePerson Data Protection Agreement

This Data Protection Agreement (“Agreement”) is effective as of the date both parties sign the Services Agreement (as defined in Section 1), the Order Form, or other order document that references this Agreement (“Effective Date”), or by otherwise accepting or using the LivePerson Services described therein. You, on behalf of your company specified in the Services Agreement, Order Form or other ordering document, agree to be bound by this Agreement.  For the purposes of this Agreement, LivePerson shall be the “Processor” and your company shall be the “Controller.” 

WHEREAS, pursuant to the Services Agreement, LivePerson shall provide certain Services (the “Services”) to Controller which may include the Processing of Controller Personal Data; and

WHEREAS, this Agreement is to be made part of, and incorporated into the Services Agreement; and

WHEREAS, the parties acknowledge and agree that the Services in such circumstances would incorporate certain data processing activities by LivePerson (and its subsidiaries and subcontractors) under the GDPR, any applicable national data protection laws of EU/EEA Member States, and the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 to 1798.199) (collectively with the GDPR, the “Data Protection Laws”); and

WHEREAS, the European Commission has adopted, by Commission Decision of 5 February 2010 (2010/87/EU), a new set of standard contractual clauses for the transfer of personal data to processors established in non-EU/EEA countries (hereinafter referred to as the “Clauses”); and

 WHEREAS, these Clauses are considered by the European Commission and the Data Protection Laws to offer adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals; and

WHEREAS, it is intended that the Clauses apply: (i) to contractual data processing where the Processor transfers data from a country which is determined by the EU commission to have an adequate level of data protection to a third country where an adequate level of protection is not ensured, and (ii) where the Processor uses a Sub-processor for the provisioning of the Services and/or processing of data.

NOW THEREFORE, in order to comply with the requirements of the Data Protection Laws, the Controller and Processor agree to the following:

1. Definitions.  All defined terms contained herein but not defined within Exhibit 1 attached hereto shall have the meaning ascribed to them in the underlying agreement covering the applicable Services between the Customer and LivePerson (inclusive of any and all attachments, addendums, amendments, exhibits, Order Forms and statements of work, the “Services Agreement”).

2. Processing.

2.1  This Agreement applies solely to the extent LivePerson Processes Controller’s Personal Data. The Controller hereby appoints LivePerson as Processor to Process such Personal Data in accordance with this Agreement.

2.2  LivePerson will Process the Controller’s Personal Data for the sole purpose of providing the Services according to the terms of this Agreement and as permitted by the Services Agreement. The Controller acknowledges and agrees that this Agreement and the Services Agreement collectively contain its instructions for the Processing of Controller Personal Data. LivePerson will implement additional reasonable instructions provided by Controller from time-to-time to the extent such instructions are required by Data Protection Laws. If the Services do not contain features or functionality that enable it to comply with Controller’s instructions, then LivePerson reserves the right to charge additional fees to enhance its systems and services as necessary. Controller agrees that persons who have the requisite authority to represent and/or bind Controller (e.g. Data Protection Officer, Chief Security Officer, Partner Manager, etc) will issue its Instructions.

2.3  LivePerson will comply with all Data Protection Laws in respect of the Services generally applicable to it as a Processor and assist the Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to LivePerson.

2.4   The Processing activities that LivePerson will provide, and the types of Personal Data that will be Processed by LivePerson are detailed in Exhibit 2 attached hereto (“Exhibit 2”).   

3. Subprocessing.

3.1  LivePerson shall not subcontract its obligations under this Agreement without Controller’s prior authorization which shall not be unreasonably withheld. Notwithstanding the foregoing, Controller hereby consents and authorizes LivePerson to engage the Sub-processors listed in the following url: https://www.liveperson.com/policies/subprocessors. LivePerson will use reasonable efforts to notify Controller of any changes concerning the addition or replacement of Sub-processors by announcing new Sub-processors in the above referenced url, which includes Controller signing up to the self service notification feature on the url. In the event that Controller has a reasonable objection to a change, Controller will provide notice to LivePerson within fourteen (14) calendar days of LivePerson’s notice. Should the Controller not respond to LivePerson in writing within such fourteen (14) day period, the proposed Sub-processor is deemed accepted. In case of Controller’s objection to the proposed Sub-processor, LivePerson will then use commercially reasonable efforts to (a) make available a different Sub-processor, or (b) disable the new Sub-processor from processing Personal Data on behalf of Controller until Controller conducts its own due diligence on the new Sub-processor, which shall not exceed thirty (30) days. After such thirty day period, Controller will notify LivePerson of its acceptance or ultimate rejection. If (i) LivePerson is unable to comply with subsection (a), or (ii) if Controller rejects the new Sub-processor following its internal due diligence review in subsection (b) above, or (iii) the parties are unable to mutually agree on a change, Controller may terminate the applicable Service which cannot be provided by LivePerson without the use of the objected-to new Sub-processor. LivePerson will, after receipt of such notice of termination from Controller, refund to Controller any prepaid recurring fees covering the remainder of the term of such Order Form with respect to such terminated unused Service.

3.2  LivePerson remains responsible for the Sub-processors and for their acts and omissions to the same extent that LivePerson would be responsible for such acts or omissions under this Agreement. LivePerson will also take reasonable steps to ensure that any Sub-processor who accesses the Controller’s Personal Data is subject to substantially similar confidentiality obligations as contained in the Services Agreement.

4. Technical and Organizational Measures.  In accordance with Exhibit 3 hereto, LivePerson will implement and maintain organizational and technical measures, consistent with the scope of the Processing, designed to ensure (a) the protection of Personal Data, and (b) compliance with the terms of this Agreement.  LivePerson will provide Controller with access to tools and/or features including, but not limited to the Data Deletion API (as defined in Section 6), that if used by Controller, may enable Controller to use the Services in compliance with Data Protection Laws.   Controller agrees to use the Data Deletion API to address their deletion obligation under the Data Protection Laws.

5. Cross-border Processing.  Any transfer of personal data outside of the European Economic Area shall be in accordance with the Data Protection Laws.  Controller hereby consents to such transfer, access and processing: (a) in any third country approved by Commission Decision 2000/518/EC of 26 July 2000 as providing adequate protection for personal data by the European Commission from time to time, which at the date of this Agreement include Andorra, Argentina, Canada, Faroe Islands, Guernsey, Isle of Man, Israel, Jersey, New Zealand, Switzerland and Uruguay, (b) in compliance with the Data Importer’s obligations set out in the Clauses for the transfer of personal data to data processors established in third countries set out in the Commission Decision of 5 February 2010 (C(2010) 593), as amended by EU Commission Implementing Decision 2016/2297 of 16 December 2016 which are hereby incorporated into and form part of this Agreement, and/or (c) in the Dominican Republic, Australia, and the United Kingdom.

6 Assistance and Compliance with Data Requests.  In the event a Data Subject requests access to, or the deletion, blocking, and/or correction of any Personal Data directly from LivePerson, LivePerson will promptly notify the Controller of such request to the extent legally permissible. In addition, LivePerson will provide Controller with reasonable assistance to enable the Controller to address the Data Subjects’ request, which may include providing access to an API that will enable Controller to request the deletion of Personal Data stored by certain Service functionality (“Data Deletion API”). In the event a government or Supervisory Authority demands access to Personal Data, LivePerson will promptly notify Controller prior to disclosure unless prohibited by law.

7. CCPA

7.1 If LivePerson collects Personal Information (as defined under the CCPA) from California residents on Controller’s behalf pursuant to providing the Services, then each party agrees that it will comply with its respective obligations under the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 to 1798.199 (as amended) (“CCPA”). Specifically, the parties acknowledge and agree that (a) Controller determines the purposes and means of LivePerson’s collection of Personal Information; (b) LivePerson is a Service Provider (as defined in the CCPA), and Controller is defined as a Business in the CCPA; and (c) LivePerson will, to the extent required by the CCPA, assist with any reasonable request made by Controller for assistance in complying with a Consumer’s rights under the CCPA by providing Controller with access to tools and/or features including but not limited to, the Data Deletion API. In addition, LivePerson makes available to Controller, and encourages Controller to utilize the following features: (i) data masking of specified data sets in transcripts; (ii) encryption at rest of transcripts; and (iii) a PCI form that allows Controller to receive payment card information in a PCI compliant manner.

7.2 If Controller chooses to avail itself of any rights under the CCPA, the choice of law and forum under Section 10 shall not apply.

8. Information and Audit.

8.1  LivePerson shall make available to Controller all information reasonably necessary to demonstrate compliance with its obligations under the Data Protection Laws. To the extent that the information provided by LivePerson is not sufficient to demonstrate such compliance, subject to audit right limitations contained in the Services Agreement (if any), LivePerson shall permit Controller and/or a third-party auditor to review and audit, at its sole cost and expense LivePerson’s systems used to provide the Services solely to the extent legally required to demonstrate such compliance.

8.2  LivePerson shall conduct an independent third-party audit of its information security program and provide such audit findings to the Controller (“LivePerson Audit”) upon request. The LivePerson Audit shall include: (i) an audit of its security policies, practices, and procedures; (ii) a vulnerability scan of LivePerson’s systems that are used in any way, or that interact with systems used in any way, to receive, use, process, maintain, transmit, store, or dispose of Personal Data; (iii) a formal penetration test of LivePerson’s systems that are used to receive, use, process, maintain, transmit, store, or dispose of Personal Data. LivePerson shall provide Controller with a high level summary of the LivePerson Audit upon request. The results of any audits permitted under this Section 8 will remain the confidential information of LivePerson.

8.3  Any audits or inspections permitted by Section 8.2 shall be subject to Controller (i) executing commercially reasonable confidentiality protections protecting LivePerson’s information, (ii) providing LivePerson with reasonable prior written notice of its intent to perform such audit, (iii) exercising such right no more than one (1) time per calendar year, and (iv) mutually agreeing to the scope of such audit with LivePerson.

9. Personal Data Deletion and Data Breach.  Upon expiration or termination of the Services Agreement and subject to the Storage Period, LivePerson will either overwrite, make inaccessible, or return to the Controller all conversation transcripts containing Controller Personal Data. At no additional cost, the Controller can download conversation transcripts of its interactions with its Data Subjects via the Services. LivePerson will notify the Controller as promptly as possible and without undue delay after it becomes aware of LivePerson or its Subprocessor’s failure to comply with Data Protection Laws impacting Controller and after becoming aware of a Personal Data Breach. LivePerson will promptly investigate the Personal Data Breach and will provide the Controller with reasonable assistance to satisfy any legal obligations (including obligations to notify Supervisory Authorities or Data Subjects) of the Controller in relation to the Personal Data Breach.

10. Miscellaneous. This Agreement, together with its exhibits and the Services Agreement, constitutes the entire agreement of the parties, and supersedes any and all previous agreements addressed herein or with respect to the subject matter hereof, whether oral or written. No amendment to the terms set forth in this Agreement will be effective unless signed by the parties hereto. No failure of either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights. This Agreement shall be binding and shall inure for the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned, in whole or in part, whether voluntarily or by operation of law (including by way of sale of assets, merger, consolidation, or otherwise) without LivePerson’s prior written consent, such consent not to be unreasonably withheld. Any purported assignment by operation of law or otherwise is voidable in LivePerson’s sole discretion. LivePerson may assign this Agreement to any successor to its business. Nothing in this Agreement shall create or confer any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favor of any person other than the parties to this Agreement. Subject to Section 7, this Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of England and Wales and the exclusive venue shall be in the courts of England and Wales. The application of the UN Convention on Contracts for International Sale of Goods is expressly excluded. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. The counterparts of this Agreement and all ancillary documents may be executed and delivered with electronic signature and the receiving party may rely on the receipt of such document by such means as if the original had been received. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. In the event a Supervisory Authority or court should be of the opinion that the collection, processing or use of personal data under this Agreement, or stipulations in this Agreement or lack of specific stipulations, or the technical-organizational measures taken, or the lack of specific technical-organizational measures, breach Data Protection Law or are otherwise unenforceable, the parties shall negotiate in good faith a modification or amendment to this Agreement and/or of the processing operations, in order to remediate the deficiencies pointed out where possible.

 

EXHIBIT 1

Definitions

1. “Data Deletion API” shall have the meaning ascribed to it in Section 6.

2. “Clauses” means the standard contractual clauses for the transfer of personal data to processors established in third countries (Commission Decision 2010/87/EC) as updated from time-to-time, as attached hereto as Exhibit 4.

3. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data. For the avoidance of doubt, the Controller shall be the entity identified as the Controller in the Preamble of the Agreement.

4. “Controller Personal Data” means the Personal Data which LivePerson is processing as Processor on behalf of Controller in order to provide the Services.

5. “Data Exporter” means the Controller established in a Member State whose Personal Data is being transferred to a Data Importer.

6. “Data Importer” means Processor or a Sub-processor located in a country that is neither a Member State nor considered by the European Commission to have adequate protection.

7. “Data Subject” is the identified or identifiable natural person the Personal Data is relating to.

8. “Data Protection Law(s)” shall have the meaning ascribed to it in the Preamble of the Agreement.

9. “Effective Date” shall have the meaning ascribed to it in the Preamble of the Agreement.

10. “GDPR” means the General Data Protection Regulation 2016/679, and any amendment or replacement to it (including any corresponding or equivalent national law or regulation which implements the GDPR).

11. “Member State” means a country that is a member of the European Union or the European Economic Area.

12. “Personal Data” means any information relating to a Data Subject that is subject to the Data Protection Laws; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

13. “Personal Data Breach” means LivePerson’s breach of Exhibit 3 which results in the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.

14. “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, accessing, alignment or combination, restriction, erasure or destruction.

15. “Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller. For the avoidance of doubt, the Processor shall be the entity identified as the Processor in the Preamble of the Agreement.

16. “Service(s)” means the services provided by Processor as agreed in the Services Agreement and excludes Processor services or products that are: (i) provided on a trial or early release basis, (ii) not generally available for licensing to Processor’s customers, (iii) or any third party products or services that integrate or interoperate with the Services.

17. “Services Agreement” shall have the meaning ascribed to it in Section 1 of the Agreement.

18. “Storage Period” means the period in which LivePerson overwrites Personal Data contained within chat transcripts (which is approximately on a rolling thirteen (13) month basis).     

19. “Sub-processor” means any subcontractor engaged for the Processing of Controller Personal Data only. Current Sub-processors are listed under the following url: https://www.liveperson.com/policies/subprocessors.  

20. “Supervisory Authority” means an independent public authority which is established by a Member State pursuant to the GDPR.

 

EXHIBIT 2

Processing Details

As set out in Section 2.4 of the Agreement to which this Exhibit 2 is attached thereto, the categories of Data Subjects, types of Personal Data, and Processing operations and nature of Processing are set out below:

1. Nature, purpose and subject matter of the Processing

To enable ongoing discussions between Controller and its customers and other end users and to record such discussions, where applicable, all in accordance with the Services Agreement.

2. Duration of the Processing

For the Storage Period as defined in the Services Agreement.

3. Categories of Data Subjects

Controller’s customers or any other individuals or entities that Controller uses the Services to engage with.

4. Types of Personal Data

Any personal data (within the meaning of the Data Protection Laws) transferred by a Data Subject (i.e. Controller’s customer/end-user) to the Controller in the course of such customer/end-user communicating with the Controller regarding business, products, services and similar items offered by the Controller. 

 

EXHIBIT 3

LivePerson Security Technical and Organizational Measures

Introduction 
As a leading service provider, LivePerson is committed to maintain an industry-standard security program. This document provides a general overview of LivePerson’s security practices and policies in order to reflect our security commitment to customers. LivePerson reserves the right to upgrade or modify this policy to reflect current industry practices, data center requirements and regulatory requirements.

1. Information Security Framework 
Aim: The information security framework is designed to ensure that personnel authorized to use a data processing system may only access the data in accordance with their access authorization and that personal data cannot be read, copied, modified or removed without authorization during the processing and use, and after the storage, thereof.
Procedure:
-A full-time dedicated security team headed by a Chief Security Officer (CSO) is responsible for ensuring that all aspects of security adhere to the highest standards, and that effective security controls are embedded and enforced in relevant processes within LivePerson.
-LivePerson’s information security management system will be based on the ISO 27001 framework or equivalent. Also, LivePerson will comply with applicable industry standards as it deems necessary.
-LivePerson’s Service Organization Controls will be audited for effectiveness by an independent third-party on an annual basis, in an SSAE16 SOC-2 Type II audit or equivalent. The report will be provided to customers upon request and subject to NDA.

2. Data centers
Secure and trusted service providers
LivePerson’s infrastructure is hosted in third-party data center facilities operated by recognized industry leaders. LivePerson has primary and backup data centers in the United States, Europe, and Australia. The data center owners are responsible for facility management, physical security, and environmental controls and have no permissions, logical access or responsibility for LivePerson’s equipment, infrastructure or systems.

Security
Aim: The primary aim of LivePerson’s security measures are to prevent access by unauthorized persons to access customer data

Physical Security
Procedure: LivePerson’s data center providers use an array of industry-standard security equipment, techniques, and procedures to reduce unauthorized access to the facilities. LivePerson’s servers are located in private, restricted cages, and access to the cages is monitored and recorded. To protect the integrity of systems, most of the security measures within the data centers are confidential.

Examples: Some of the more visible measures include:

  • 24/7 security officers on site
  • An advanced array of closed-circuit TV camera and recording systems (CCTV)
  • Exterior and interior intrusion and tamper-prevention systems
  • Comprehensive security audits and tests
  • Strong security policies

Environmental Security
Third-party data centers are built to withstand natural disasters (e.g. fire, flood, earthquakes). Also, to minimize potential service interruptions caused by power outages the data centers generally deliver power via distributed redundant UPS systems, backup batteries and independent diesel generators.

3. Network Security
Incoming traffic to LivePerson’s network pass through access-list enabled routers to block unwanted traffic, potential attacks and protect the next layers of security mechanisms from overload. Traffic that has been allowed to pass through the routers is screened by multiple sets of network firewalls ensuring that only legitimate protocols are used, and that session integrity is maintained.

4. Infrastructure Security
Patch Management & Hardening
Procedure: LivePerson has established and implemented a comprehensive patch management program and server hardening processes. Patches and updates are regularly installed on Production devices after testing and subject to change management processes. Operating systems are installed from predefined hardened images.

Antivirus
Procedure: Where applicable, LivePerson uses anti-virus technology to protect desktops, laptops, and servers against malicious code that may cause damage or impact the service confidentiality, integrity or availability.

5. Logical Security
Aim: LivePerson aims to provide a secure logistical environment utilizing industry best practices with regards to system access

Access to the LivePerson Platform
Procedure: Services provided by LivePerson are Internet-based; access to the LivePerson platform (Agent & Admin Console & APIs) is established over industry standard secure communication channels and requires a mandatory authentication process with:
Examples:
- a unique account ID,
- username and password,
- SAML or OAuth
All public communication is mandatory encrypted.

User and Permission Management
Procedure: LivePerson provides comprehensive user and role-based permission management controls. Customers are responsible for all user management including (see Examples):
Examples:
- creation
- suspension
- deletion
- granting the appropriate access permissions to resources within the Customer’s LivePerson account

Login Policy Controls
Procedure: LivePerson provides comprehensive login policy related controls to be used by the customer (see Examples). Customers are responsible for setting up the appropriate controls in accordance with their organizational security policies or standards.
Examples:
- Password Policy
- IP based access controls

Account Security Settings
Procedure: LivePerson provides additional account security settings and data protection controls; some of the controls and settings are configured by the customer while others require the submission of a ticket to LivePerson support in order to enable.

Cookies
Procedure: The LivePerson platform requires the use of cookie-based technologies to provide its services. The LivePerson platform offers different cookie configurations to the customer. For more details on the available configurations, please refer to https://www.liveperson.com/policies/use-of-cookies. Customer is responsible for updating its privacy policy to incorporate LivePerson’s placement of cookies on its site.

6. Application Security
Aim: LivePerson aims to maintain a secure application development lifecycle
Procedure: LivePerson shall maintain a secure application development lifecycle by implementing a security program that tests for security vulnerabilities by independent security experts.
Examples: 3rd party experts perform an array of:
- vulnerability assessments and penetration tests against the LivePerson platform and infrastructure on a regular basis, in accordance with industry standards.

7. Operations
Aim: LivePerson aims to provide a stable environment for its Customers, ensuring access to our offering and remedying any issues or deficiencies that may unexpectedly arise:
Procedures:
- LivePerson’s Network Operations Center monitors the service and infrastructure on a 24/7 basis, 365 days a year.
- Notifications related to security incidents will be handled as any other operational service issues, in accordance with LivePerson’s standard Service Level Agreement (SLA).

- Changes to LivePerson’s Production environment are executed within a defined maintenance window, after a coordination process that includes obtaining the appropriate authorizations and approvals from the appropriate stakeholders based on segregation of duties principle.

- LivePerson is responsible for the backup of critical components and customer data that is processed by LivePerson. LivePerson conducts backups in 2 tiers:
(i) Central storage tier, where we have daily snapshots on the Local storage, a mirror of all the data to another storage and another, real-time, mirror to DR site.
(ii) Another tier is a standard "Backup to disk" backup done with Netbackup. We backup everything, including DB's, File systems, virtual servers (VMware).

- The backups are done daily, weekly and monthly. The backup is duplicated in the site and also transmitted to the DR site through VPN. LivePerson conducts restoration tests from and application database backup to determine that data can be recovered efficiently and in a controlled manner

- LivePerson shall maintain a documented Business Continuity Plan that will be tested and updated at least annually. A subset of LivePerson’s BCP is a Disaster Recovery strategy: in case of complete failure of the primary data center, LivePerson will continue serving its customers from a secondary disaster recovery (DR) site.

8. LivePerson Human Resources / Staff
Aim: LivePerson’s human resources team employees process throughout each employee and/or staff members cycle of service at LivePerson to ensure appropriate measures are taken to secure Customer data.
Procedure(s):
- LivePerson conducts reference and background checks for employees as permitted by applicable law in each location of its operations.

- LivePerson employees and staff members are provisioned with access to LivePerson systems based on the following concepts: each has its own unique, personal account to LivePerson’s systems or networks. The access is granted based on a need-to-work basis and a least-privileges concept.

- User accounts within LivePerson’s systems (not including customers’ users or customer’s accounts) are disabled by the LivePerson system administrator within a reasonable period of time after receiving a termination notification from human resources. Customers are responsible for managing their users and for removing users from their own accounts.

EXHIBIT 4

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC (or its GDPR equivalent after May 25, 2018) for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

Name of the data exporting organisation: 

The entity identified as “Controller” in the DPA Agreement 

 (the “data exporter”)

And

Name of the data importing organisation: 

The entity named “LivePerson” in the DPA Agreement each a “party;” together the “parties”

HAVE AGREED on the following Contractual Clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

“personal data,” “special categories of data,” “process/processing,” “controller,” “processor,” “data subject” and “supervisory authority” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

“the data exporter” means the controller who transfers the personal data;

“the data importer” means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC (or its GDPR equivalent after May 25, 2018);

“the sub-processor” means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

“the applicable data protection law” means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

“technical and organisational security measures” means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC (or its GDPR equivalent after May 25, 2018);
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and (j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    2. any accidental or unauthorised access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
  3. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  4. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses [3]. Where the subprocessor fails to fullfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

 

Appendix 1

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is the entity identified as “Controller” in the DPA Agreement. 

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

LivePerson, a provider of cloud-based digital engagement solutions that enable businesses to proactively connect with consumers through chat, voice, content delivery and similar methodologies across multiple channels, including websites, social media, tablets and mobile devices.  

Data subjects

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

Any personal data (within the meaning of the EU Directive 95.46/EC (or its GDPR equivalent as of May 25, 2018)) transferred by a data subject to the data importer across one or more of the channels identified above in the course of such data subject communicating with the data importer regarding business, products, services and similar items offered by the data exporter. 

Categories of data

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

Any personal data (within the meaning of the EU Directive 95.46/EC (or its GDPR equivalent as of May 25, 2018)) transferred by a data subject to the data importer in the course of such data subject communicating with the data importer regarding business, products, services and similar items offered by the data exporter. 

Special categories of data (if appropriate)

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

Any personal data (within the meaning of the EU Directive 95.46/EC (or its GDPR equivalent as of May 25, 2018)) transferred by a data subject to the data importer in the course of such data subject communicating with the data importer regarding business, products, services and similar items offered by the data exporter. 

Processing operations

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

Web-based digital engagement solutions that proactively connect with consumers through chat, voice, content delivery and similar methodologies across multiple channels, including websites, social media, tablets and mobile devices. Relatedly, personal data will be processed for the following purposes: (a) to provide the services described above and in the agreement(s) between the data exporter and data importer; (b) to operate, maintain, enhance and support such services (and related services) and the infrastructure used to provide the services; and (c) to respond to customer support requests.

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

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

LivePerson Security Technical and Organizational Measures

Introduction 
As a leading service provider, LivePerson is committed to maintain an industry-standard security program. This document provides a general overview of LivePerson’s security practices and policies in order to reflect our security commitment to customers. LivePerson reserves the right to upgrade or modify this policy to reflect current industry practices, data center requirements and regulatory requirements.

1. Information Security Framework 
Aim: The information security framework is designed to ensure that personnel authorized to use a data processing system may only access the data in accordance with their access authorization and that personal data cannot be read, copied, modified or removed without authorization during the processing and use, and after the storage, thereof.
Procedure:
-A full-time dedicated security team headed by a Chief Security Officer (CSO) is responsible for ensuring that all aspects of security adhere to the highest standards, and that effective security controls are embedded and enforced in relevant processes within LivePerson.
-LivePerson’s information security management system will be based on the ISO 27001 framework or equivalent. Also, LivePerson will comply with applicable industry standards as it deems necessary.
-LivePerson’s Service Organization Controls will be audited for effectiveness by an independent third-party on an annual basis, in an SSAE16 SOC-2 Type II audit or equivalent. The report will be provided to customers upon request and subject to NDA.

2. Data centers
Secure and trusted service providers
LivePerson’s infrastructure is hosted in third-party data center facilities operated by recognized industry leaders. LivePerson has primary and backup data centers in the United States, Europe, and Australia. The data center owners are responsible for facility management, physical security, and environmental controls and have no permissions, logical access or responsibility for LivePerson’s equipment, infrastructure or systems.

Security
Aim: The primary aim of LivePerson’s security measures are to prevent access by unauthorized persons to access customer data

Physical Security
Procedure: LivePerson’s data center providers use an array of industry-standard security equipment, techniques, and procedures to reduce unauthorized access to the facilities. LivePerson’s servers are located in private, restricted cages, and access to the cages is monitored and recorded. To protect the integrity of systems, most of the security measures within the data centers are confidential.

Examples: Some of the more visible measures include:

  • 24/7 security officers on site
  • An advanced array of closed-circuit TV camera and recording systems (CCTV)
  • Exterior and interior intrusion and tamper-prevention systems
  • Comprehensive security audits and tests
  • Strong security policies

Environmental Security
Third-party data centers are built to withstand natural disasters (e.g. fire, flood, earthquakes). Also, to minimize potential service interruptions caused by power outages the data centers generally deliver power via distributed redundant UPS systems, backup batteries and independent diesel generators.

3. Network Security
Incoming traffic to LivePerson’s network pass through access-list enabled routers to block unwanted traffic, potential attacks and protect the next layers of security mechanisms from overload. Traffic that has been allowed to pass through the routers is screened by multiple sets of network firewalls ensuring that only legitimate protocols are used, and that session integrity is maintained.

4. Infrastructure Security
Patch Management & Hardening
Procedure: LivePerson has established and implemented a comprehensive patch management program and server hardening processes. Patches and updates are regularly installed on Production devices after testing and subject to change management processes. Operating systems are installed from predefined hardened images.

Antivirus
Procedure: Where applicable, LivePerson uses anti-virus technology to protect desktops, laptops, and servers against malicious code that may cause damage or impact the service confidentiality, integrity or availability.

5. Logical Security
Aim: LivePerson aims to provide a secure logistical environment utilizing industry best practices with regards to system access

Access to the LivePerson Platform
Procedure: Services provided by LivePerson are Internet-based; access to the LivePerson platform (Agent & Admin Console & APIs) is established over industry standard secure communication channels and requires a mandatory authentication process with:
Examples:
- a unique account ID,
- username and password,
- SAML or OAuth
All public communication is mandatory encrypted.

User and Permission Management
Procedure: LivePerson provides comprehensive user and role-based permission management controls. Customers are responsible for all user management including (see Examples):
Examples:
- creation
- suspension
- deletion
- granting the appropriate access permissions to resources within the Customer’s LivePerson account

Login Policy Controls
Procedure: LivePerson provides comprehensive login policy related controls to be used by the customer (see Examples). Customers are responsible for setting up the appropriate controls in accordance with their organizational security policies or standards.
Examples:
- Password Policy
- IP based access controls

Account Security Settings
Procedure: LivePerson provides additional account security settings and data protection controls; some of the controls and settings are configured by the customer while others require the submission of a ticket to LivePerson support in order to enable.

Cookies
Procedure: The LivePerson platform requires the use of cookie-based technologies to provide its services. The LivePerson platform offers different cookie configurations to the customer. For more details on the available configurations, please refer to https://www.liveperson.com/policies/use-of-cookies. Customer is responsible for updating its privacy policy to incorporate LivePerson’s placement of cookies on its site.

6. Application Security
Aim: LivePerson aims to maintain a secure application development lifecycle
Procedure: LivePerson shall maintain a secure application development lifecycle by implementing a security program that tests for security vulnerabilities by independent security experts.
Examples: 3rd party experts perform an array of:
- vulnerability assessments and penetration tests against the LivePerson platform and infrastructure on a regular basis, in accordance with industry standards.

7. Operations
Aim: LivePerson aims to provide a stable environment for its Customers, ensuring access to our offering and remedying any issues or deficiencies that may unexpectedly arise:
Procedures:
- LivePerson’s Network Operations Center monitors the service and infrastructure on a 24/7 basis, 365 days a year.
- Notifications related to security incidents will be handled as any other operational service issues, in accordance with LivePerson’s standard Service Level Agreement (SLA).

- Changes to LivePerson’s Production environment are executed within a defined maintenance window, after a coordination process that includes obtaining the appropriate authorizations and approvals from the appropriate stakeholders based on segregation of duties principle.

- LivePerson is responsible for the backup of critical components and customer data that is processed by LivePerson. LivePerson conducts backups in 2 tiers:
(i) Central storage tier, where we have daily snapshots on the Local storage, a mirror of all the data to another storage and another, real-time, mirror to DR site.
(ii) Another tier is a standard "Backup to disk" backup done with Netbackup. We backup everything, including DB's, File systems, virtual servers (VMware).

- The backups are done daily, weekly and monthly. The backup is duplicated in the site and also transmitted to the DR site through VPN. LivePerson conducts restoration tests from and application database backup to determine that data can be recovered efficiently and in a controlled manner

- LivePerson shall maintain a documented Business Continuity Plan that will be tested and updated at least annually. A subset of LivePerson’s BCP is a Disaster Recovery strategy: in case of complete failure of the primary data center, LivePerson will continue serving its customers from a secondary disaster recovery (DR) site.

8. LivePerson Human Resources / Staff
Aim: LivePerson’s human resources team employees process throughout each employee and/or staff members cycle of service at LivePerson to ensure appropriate measures are taken to secure Customer data.
Procedure(s):
- LivePerson conducts reference and background checks for employees as permitted by applicable law in each location of its operations.

- LivePerson employees and staff members are provisioned with access to LivePerson systems based on the following concepts: each has its own unique, personal account to LivePerson’s systems or networks. The access is granted based on a need-to-work basis and a least-privileges concept.

- User accounts within LivePerson’s systems (not including customers’ users or customer’s accounts) are disabled by the LivePerson system administrator within a reasonable period of time after receiving a termination notification from human resources. Customers are responsible for managing their users and for removing users from their own accounts.