Secureworks Master Services Agreement - United Kingdom
THIS SECURITY SERVICES CUSTOMER MASTER SERVICES AGREEMENT (“MSA”)is entered into by and between Secureworks Europe Limited, with an address at Dell House, Cain Road, Bracknell, Berkshire RG12 1LF, United Kingdom (“Secureworks”) and the customer entity (the “Customer”) set forth in a Service Order or Statement of Work as of the Effective Date (as defined by , in respect of a Service Order, the submission to Secureworks of a Service Order duly executed by Customer , and, in respect of a Statement of Work the latest date in the signature blocks in a signed Statement of Work). Secureworks and Customer each a “party,” together the “parties.”.
Secureworks and Customer agree to the following terms and conditions:
1.1 MSS Services and Consulting Services. During the Term (as defined in Section 3.1) and subject to the terms and conditions of this MSA, Secureworks agrees to provide managed security services (“MSS Services”) and/or security risk consulting services (“Consulting Services”) (collectively, the “Services”) and Customer agrees to purchase such Services. Secureworks may provide the Services by its Affiliates. “Affiliates” with respect to a party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party.
1.2 MSS Services. Specific terms and conditions relating to the MSS Services shall be set forth in one or more service orders (“Service Order(s)”). A detailed description of the MSS Services being purchased shall be provided in the relevant service description and service level agreement (“SLA”) for such MSS Services attached to each Service Order and incorporated by reference.
1.3 Consulting Services. Specific terms and conditions relating to the Consulting Services shall be set forth in one or more statements of work (“SOW”) executed by the parties.
1.4 Service Documents. The Service Order(s) and SLA relating to the MSS Services and SOW relating to the Consulting Services are collectively referred to as “Service Document(s)”. Each Service Document shall be a separate independent agreement which shall incorporate the terms of this MSA by reference.
1.5 Order of priority. In the event of a conflict between the terms of this MSA and a Service Document (including any exhibits or attachments thereto), the terms of the Service Document shall govern.
2. Fees; Taxes; Invoicing and Payment.
2.1 Affiliates. Affiliates. As used herein, the term “Affiliate” with respect to a party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party. “Customer” may include Customer’s Affiliate(s): (i) receiving the benefit of the Services through Customer’s purchase of the Services, or (ii) whose data is included, accessed or received by Secureworks in connection with the performance of the Services for Customer. With respect to such Customer Affiliate(s), Customer hereby represents and warrants that: (A) Customer has obtained the necessary consent from each Customer Affiliate for Secureworks to access such Customer Affiliate’s networks and data in connection with providing the Services, and (B) each Customer Affiliate agrees to, and is hereby legally bound by, the terms of this MSA. The parties acknowledge and agree that , Customer Affiliate(s) are not intended to be third party beneficiaries to this MSA and shall have no direct claim against Secureworks hereunder. Customer shall be fully liable for any breach of the terms of this MSA by its Affiliate(s) receiving or having access to the Services hereunder.
In addition, in the event that a Customer Affiliate with a location outside of the United Kingdom is purchasing Services under this MSA (“Customer International Affiliate”), (i) such Customer International Affiliate shall enter into a Service Order and/or SOW directly with the Secureworks local Affiliate (“Secureworks Local Affiliate”) for such Services, and (ii) Customer shall execute a local country addendum specifying any local country required terms on behalf of Customer’s International Affiliate. For the purposes of either party’s Affiliate(s) performing, receiving or purchasing Services hereunder, references to Secureworks and Customer herein shall be deemed references to such party’s respective Affiliate(s).
2.2 MSS Service Fees. Customer agrees to pay Secureworks for the MSS Services in accordance with the applicable Service Order. For each Service Order, the MSS Services will commence (the “MSS Service Commencement Date”) on the first day in which Secureworks: (a) has established communication with the Equipment (as defined in Section 5); and (b) has verified availability of Customer Data (as defined in Section 6.1) on the Secureworks customer online portal (details and login details of which shall be provided by Secureworks to the Customer) (“Portal”). Secureworks shall invoice Customer for such MSS Services provided on or after the MSS Service Commencement Date. Secureworks has the unilateral right to cancel any Service Order, or portion thereof, as to Services that are not implemented within six (6) months after execution of the Service Order.
2.3 Specific MSS Services. If Customer purchases Server/Network Infrastructure Monitoring or Security Information and Event Management MSS Services pursuant to a Service Order as detailed in the relevant Service Order, Secureworks may invoice Customer for such MSS Services applicable to all devices in the tier of MSS Services being purchased (tiers and corresponding device quantity as outlined in the applicable Service Order) on or after the MSS Service Commencement Date of the MSS Services applicable to the initial device(s). If there are devices remaining to be integrated after the MSS Service Commencement Date of the initial device(s), Customer shall be responsible for initiating the integration of such devices via the Portal.
2.4 Consulting Services Fees. Customer agrees to pay Secureworks for the Consulting Services in accordance with the applicable SOW. For each SOW, the Consulting Services will commence on the date specified in the applicable SOW (the “Consulting Services Commencement Date”) and Secureworks may invoice Customer for such Consulting Services on or after the Consulting Services Commencement Date.
2.5 Change Control.Either party may propose a change to the Services (“Change”) which: (i) would modify or alter the delivery of the Services or the composition of the Services; (ii) would alter the cost to Customer for the Services; or (iii) is agreed by Customer and Secureworks in writing to be a Change. Any Change to the applicable Service Document shall be documented in writing by a change control note signed by an authorised representative of each party (“Change Order”). Section 2.5 shall not apply where the parties have agreed to quarterly pricing updates, which shall be binding on written notification to the Customer.
2.6 Expenses. If the Services require Secureworks to attend the Customer’s premises, the Customer shall reimburse Secureworks for all reasonable expenses, including, but not limited to, travel, hotel and meals, incurred in connection with the implementation, performance or delivery of the Services.
2.7 Taxes. Customer shall be responsible, on behalf of itself and its Customer Affiliates, for the payment of all taxes arising out of this MSA and any Service Documents in any territory in which the Customer receives the Services, including, but not limited to, any sales, use, value-added, or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Services or goods received from Secureworks, except for taxes imposed on Secureworks’ income or arising from the employment relationship between Secureworks and its employees and taxes for which the Customer has provided valid and official documentation of its tax exempt status. If Customer is required by law to withhold or deduct an amount from payments due to Secureworks under this agreement, Customer shall include such additional amount to Secureworks with its payment to ensure that Secureworks receives, after such withholding or deduction, the amount that it would have been paid had no withholding or deduction been required.
2.8 Invoicing; Payment and Disputes. Secureworks will invoice Customer in accordance with the payment terms set forth and detailed in the applicable Service Document. Unless otherwise provided for in the applicable Service Document: (a) all charges, fees, payments and amounts hereunder will be in pounds sterling; and (b) all amounts due hereunder are payable within thirty (30) days from the date of the invoice (the “Invoice Due Date”). Customer may reasonably and in good faith dispute any portion of any amount claimed by Secureworks as payable prior to the Invoice Due Date, by promptly paying any undisputed portion of the amount and providing Secureworks, prior to the Invoice Due Date, written notice specifying the disputed amount and the basis for the dispute in reasonable detail.
2.9 Non Payment. For invoices not paid by the relevant Invoice Due Date, Secureworks reserves the right, without prejudice to any other remedy to which it may be entitled, to: (a) charge interest on such overdue amount on a day to day basis from the Invoice Due Date at the rate of four percent (4%) per annum above the Royal Bank of Scotland plc’s base rate from time to time until payment is made in full; (b) suspend the provision of the Services until such time as payment is received, provided that Secureworks shall not suspend the provision of Services without first providing at least five (5) business days advance notice to Customer; and (c) not accept any additional orders from the Customer. Thereafter Secureworks shall be entitled to terminate this MSA and any Service Document(s) providing five (5) business days advance notice to Customer. Customer shall be responsible for payment of reasonable legal fees incurred by Secureworks to collect such amounts owed by Customer. Secureworks shall have no liability to Customer for any such suspension of Services, or non-acceptance of orders.
2.10 Third-Party Products/Services. If Customer is purchasing, or subsequently purchases, any third party products or services through Secureworks pursuant to any Service Document, then, as applicable, Customer will comply with the terms and conditions attached to or referenced in that Service Document relating to such third party product or service, including without limitation any third party end user agreement.
3. Term of MSA and Service Orders.
3.1 Term of MSA. The term of this MSA shall commence on the Effective Date and shall continue until this MSA is terminated pursuant to the provisions hereof (the “Term”).
3.2 Term of Service Document. The term for the Services to be provided under this MSA will be set out in the applicable Service Document.
4.1 Termination for Breach. Either party may terminate this MSA or any unexpired Service Document in the event that the other party materially defaults in performing any obligation under this MSA: (a) immediately following notice of default if such default is not capable of being remedied; or (b) thirty (30) days following written notice of default if such default continues un-remedied. If this MSA or any unexpired Service Document is terminated for any reason, Customer agrees to pay to Secureworks: (i) all unpaid Service fees as set forth in the Service Document accrued or performed as of such termination date; plus (in circumstances where termination is for any reason other than Secureworks’ breach) (ii) for MSS Services only, a termination fee equal to the MSS Service fees that will become due during the remaining term of the applicable Service Order(s). If Customer terminates this MSA or any unexpired Service Document as a result of Secureworks’ breach, then to the extent that Customer has prepaid any Service fees, Secureworks shall refund to Customer such prepaid fees on a pro-rata basis to the extent such fees are attributable to the period after such termination date; provided, however, that Customer remains liable to pay to Secureworks all unpaid Service fees as set forth in the Service Document accrued as of, and attributable to the period prior to, such termination date.
4.2 Termination for Insolvency. This MSA will terminate, effective upon delivery of written notice by either party to the other party upon the following: (a) the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party; (b) the making of an assignment for the benefit of creditors by the other party; or (c) the dissolution of the other party.
4.3 Effects of Termination. Termination or expiration of a Service Document shall not be construed, by implication or otherwise, to constitute termination of this MSA or any other existing Service Document. In the event that this MSA is terminated, any existing Service Document shall also terminate.
5. MSS Services Software, Restrictions.
5.1 MSS Services Provision. Secureworks will provide to Customer equipment or hardware (“Secureworks Equipment”), software (in object code format only) (“Software”), user IDs, tokens, passwords, digital signatures (“Protected Information”) and applicable written directions and/or policies (“Documentation”) and access to and use of the Portal, as necessary to enable the Customer to receive the MSS Services, strictly subject to the restrictions and terms set out in this MSA.
5.2 Use. Secureworks grants Customer a limited, non-transferable, royalty-free and non-exclusive licence to access and use during the Term the Products delivered to Customer for internal security use subject to the restrictions set out in Section 5.4.
5.3 Equipment. The Customer may purchase the equipment or hardware pursuant to a Service Order (“Customer Equipment”). The Secureworks Equipment and Customer Equipment are collectively referred to as the “Equipment”. Risk of loss or damage to the Equipment shall pass on delivery. Title to the Customer Equipment shall pass to Customer on payment. Title to the Secureworks Equipment shall remain with Secureworks and Customer shall return the Secureworks Equipment in good condition and working order within twenty-eight (28) days of the date of termination or expiry of the Service Order and shall cease use of all Software. If the Secureworks Equipment is not returned by Customer within this timeframe or is returned in an unsatisfactory or non-working condition, Customer will pay the full replacement cost of the Secureworks Equipment. The Equipment, Software, Protected Information and Documentation are collectively referred to as “Products”.
5.4 Restrictions. Customer: (i) will use the Products and Services for its internal security purposes, or for the internal security purposes of Customer Affiliates; and (ii) will not, for itself, or for any Customer Affiliate or any third party: (a) sell, rent, license, assign, distribute, or transfer any of the Products; (b) decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the Software; (c) copy any Software or Documentation, except that Customer may make a reasonable number of copies of the Documentation for its internal use (provided Customer reproduces on such copies all proprietary notices of Secureworks or its suppliers); or (d) remove from any Product any language or designation indicating the confidential nature thereof or the proprietary rights of Secureworks or its suppliers. In addition, Customer will not, and will not permit third parties to: (i) use any Software or Equipment on a time-sharing, outsourcing, service bureau, hosting, application service provider or managed service provider basis; (ii) alter any aspect of any Software or Equipment; or (iii) except as permitted under Section 13.1, assign, transfer, distribute, or otherwise provide access to any of the Products to any third party or otherwise use any Product with or for the benefit of any third party.
5.5 Protected Information. Customer shall treat the Protected Information as Confidential Information in accordance with Section 8.
6. Proprietary Rights.
6.1 Customer’s Proprietary Rights.Customer represents and warrants that it has the necessary rights, power, consents and authority to transmit Customer Data (as defined below) to Secureworks under this MSA and that Customer has and shall continue to fulfill all obligations with respect to individuals as required to permit Secureworks to carry out the terms hereof, including with respect to all applicable laws, regulations and other constraints applicable to Customer Data. As between Customer and Secureworks, Customer will own all right, title and interest in and to: (i) any data provided by Customer and Customer Affiliates to Secureworks and/or Customer data accessed or used by Secureworks or transmitted by Customer and Customer Affiliates to Secureworks on the Equipment in connection with Secureworks’ provision of the Services, including, but not limited to, Customer and Customer Affiliate data included in any written or printed summaries, analyses or reports generated in connection with the Services (“Customer Data”); (ii) all intellectual property, including patents, copyrights, trademarks, trade secrets and other proprietary information (“IP”) of Customer that may be made available to Secureworks in the course of providing Services under this MSA; and (iii) all confidential or proprietary information of Customer and Customer Affiliates, including, but not limited to, Customer Data, Customer Reports (as defined in Section 6.4), and other Customer files, documentation and related materials, in each case under this Section 6.1.
6.2 Limited Licence. Customer grants to Secureworks a limited, non-exclusive license to use the Customer Data to perform the Services. Secureworks may process Security Event Data during and after the term hereof to develop and enhance its products and services. “Security Event Data” means information, collected during Secureworks provision of managed security services, related to security events. Customer grants to Secureworks a limited, non-exclusive, perpetual, worldwide, irrevocable licence to use and otherwise process the Security Event Data during and after the term hereof to develop, enhance and/or improve its security services and the products and services it offers and provides to customers. To the extent such Security Event Data includes information about individuals, Secureworks will be the controller. This MSA does not transfer or convey to Secureworks or any third party any right, title or interest in or to the Customer Data or any associated IP rights, but only a limited right of use as granted in and revocable in accordance with this MSA.
6.3 Secureworks’ Proprietary Rights. Subject to the provisions of clause 5.3 in relation of title transfer of Customer Equipment, as between Customer and Secureworks, Secureworks will own all right, title and interest in and to the Products and Services and this MSA does not transfer or convey to Customer or any third party any right, title or interest in or to the Products and Services or any associated IP rights, but only a limited right of use as granted in and revocable in accordance with this MSA. Any licence granted by Secureworks to the Customer shall automatically terminate on the expiry or termination of the relevant Service Document. Secureworks will retain ownership of all copies of the Documentation. In addition, except as set forth in Sections 6.1 and 6.4, Customer agrees that Secureworks is the owner of all right, title and interest in all IP in any work, including, but not limited to, all inventions, methods, processes, and computer programs including any source code or object code, (and any enhancements and modifications made thereto) contained within the Services and/or Products (collectively, the “Works”), developed by Secureworks in connection with the performance of the Services hereunder and of general applicability across Secureworks’ customer base, and Customer hereby assigns to Secureworks all right, title and interest in any copyrights that Customer may have in and to such Works. Without limiting the foregoing, Secureworks will own all right, title and interest in all IP in any advisory data, threat data, vulnerability data, analyses, summaries, bulletins and information made available to Customer in Secureworks’ provision of its Counter Threat Intelligence Services (“TI Reports”). During the Term, Secureworks grants to Customer a limited, non-exclusive license to use such Works and TI Reports solely for the Customer to receive the Services hereunder for Customer’s internal security purposes only.
6.4 Customer Reports; No Reliance by Third Parties. Customer shall own all right, title and interest in and to any written summaries, reports, analyses, and findings or other information or documentation prepared uniquely and exclusively for Customer, in connection with the Consulting Services (the “Customer Reports”) and as expressly specified in the relevant SOW. The provision by Customer of any Customer Report or any information therein to any unaffiliated third party shall not entitle such third party to rely on the Customer Report or the contents thereof in any manner or for any purpose whatsoever, and Secureworks specifically disclaims all liability for any damages whatsoever (whether direct, indirect, or consequential) arising from or related to reliance by any third party on any Customer Report or any contents thereof.
6.5 Return of Proprietary Information.Except as otherwise provided in the Data Protection Agreement set out in Appendix B hereto, the parties agree that the following provisions shall apply to the return of proprietary information. Upon termination of this MSA, each party will, at the request of the other party and to the extent practicable, return, or upon the other party’s request, destroy, all copies of the other party’s IP and/or Confidential Information, including any Customer Data, in such party’s possession, custody or control, provided, however, that Secureworks will be entitled to retain one copy of the Customer Data as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements. Secureworks may defer the return or deletion of Customer Data to the extent and for the duration that any such Customer Data or copies thereof cannot reasonably and practically be expunged from Secureworks’ systems (e.g. because they are held in backups, archives and/or disaster recovery files that are not readily available) and for such deferred period all of the provisions of this MSA shall continue to apply to such Customer Data. For Customer Equipment, Customer shall erase, destroy and cease use of all Software located on such Customer Equipment upon the expiration or termination of the Term.
7. Customer Responsibilities.
7.1 Cooperation Customer acknowledges that Secureworks’ performance and delivery of the Services are contingent upon: (a) Customer providing safe and hazard-free access and use to its personnel, facilities, equipment, hardware, network and information as deemed reasonably necessary for Secureworks to perform or implement the Services; and (b) Customer’s timely decision-making and provision of timely, accurate and complete information and reasonable assistance, including granting of approvals or permissions. Customer will promptly obtain and provide to Secureworks any required licenses, approvals or consents necessary for Secureworks’ performance of the Services. Secureworks will be excused from its failure to perform its obligations under this MSA to the extent such failure is caused by any delay, default, act or omission by Customer, Customer Affiliates, employees, suppliers or representatives.
7.2 If Secureworks is requested by Customer, or required by government regulation, regulatory agency, subpoena, or other legal process to produce Customer Reports, documentation or Secureworks personnel for testimony or interview with respect to the Services, Customer will reimburse Secureworks’ and its counsel’s expenses and professional time incurred in responding to such a request.
8.1 Confidential Information Customer and Secureworks may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to software, product plans, marketing and sales information, customer lists, “know-how,” or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”).
8.2 Each party may have access to or be exposed to Confidential Information and any Confidential Information shall: (i) be kept confidential; (ii) only be used in connection with the proper performance of this MSA; and (iii) not be shared with third parties unless such disclosure is to the recipient party’s representatives (including directors, officers, employees, agents, auditors, professional advisers and subcontractors of the recipient party or its Affiliates) strictly on a need-to-know basis in connection with this MSA and provided that such representatives have agreed in writing to treat such Confidential Information under terms consisting of similar obligations as those set out in this Section 8.
8.3 TheThe parties agree that disclosure of the disclosing party’s Confidential Information by the recipient party could cause irreparable harm. In such circumstances, the disclosing party shall be entitled to apply for equitable relief, including injunctive relief in addition to other rights and remedies.
8.4 The restrictions set out in this Section 8 shall not apply to information that: (i) was known by the recipient party receiving Confidential Information from the disclosing party in accordance with this MSA prior to its receipt from the disclosing party; (ii) is or becomes public knowledge through no fault of the recipient party; (iii) is rightfully received by the recipient party from a third party without a duty of confidentiality; or (iv) a recipient party is required or requested to divulge by any court, tribunal or government agency with competent jurisdiction to which either party is subject, wherever situated.
8.5 If a recipient party is required by a court, tribunal or government agency with competent jurisdiction to which either party is subject, wherever situated, to disclose Confidential Information, the recipient party shall, where possible, provide written notice to the disclosing party prior to such a disclosure.
8.6. During the term of this MSA and the Services, Secureworks shall employ and maintain reasonable and appropriate safeguards designed to: (a) reasonably protect all Customer Data in Secureworks’ possession from unauthorized use, alteration, access or disclosure; (b) detect and prevent against a Security Breach (as defined below); and (c) ensure that Secureworks’ employees and agents are appropriately trained to maintain the confidentiality and security of Customer Data in Secureworks’ possession.
An unauthorized intrusion by a third party into a network or systems, not directly caused by Secureworks’ negligence or willful misconduct, that results in unauthorized access to Confidential Information or Customer Data by a third party shall not be considered a breach of this Section 8.
Secureworks agrees to promptly notify Customer upon becoming aware of a confirmed use, accidental or unlawful destruction, loss or unauthorized or disclosure of Customer Data or Customer Confidential Information in Secureworks’ possession or control, in violation of this MSA (a “Security Breach”).
8.7 This Section 8 shall survive for three (3) years following any termination or expiration of this MSA; provided that with respect to any Confidential Information remaining in the receiving party’s possession following any termination or expiration of this MSA, the obligations under this Section 8 shall survive for as long as such Confidential Information remains in such party’s possession.
9. Limited Warranty and Limitation of Liability.
9.1 Limited Warranty. SECUREWORKS WARRANTS THAT: (I) ITS PERSONNEL ARE ADEQUATELY TRAINED AND COMPETENT TO PERFORM THE SERVICES, AND (II) THE SERVICES SHALL BE PERFORMED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH THE APPLICABLE SERVICE ORDER/SOW AND THIS MSA. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9.1, SECUREWORKS (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE "SECUREWORKS PARTY(IES)") MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE PRODUCTS, SERVICES OR CUSTOMER REPORTS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR NON-INFRINGEMENT. CUSTOMER UNDERSTANDS THAT SECUREWORKS’ SERVICES DO NOT CONSTITUTE ANY GUARANTEE OR ASSURANCE THAT THE SECURITY OF CUSTOMER’S SYSTEMS, NETWORKS AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK.
9.1.1 Secureworks shall not be liable for any action, claim or demand arising from:
(a) any misuse by Customer of the Products;
(b) any alteration, modification, adjustment or repair of the Products by Customer or a third party without Secureworks’ prior written consent;
(c) any failure by Customer to comply with its obligations in a timely manner;
(d) any failure by Customer to follow Secureworks’ lawful instructions or recommendations;
(e) Secureworks acting on any instructions or recommendations made by Customer;
(f) any third party equipment or software provided by Secureworks, in respect of which Customer shall only be entitled to the benefit of any manufacturer’s warranties, guarantees or service contract terms and conditions applicable to such equipment or software.
For the purposes of this Section 9.1.1, Customer shall be deemed to include the employees, advisers and subcontractors of the Customer and those of Customer Affiliates.
9.1.2 All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded. .
9.2 Limitation of Liability.
9.2.1 Neither the Secureworks Parties nor Customer shall be liable to the other party for: (a) loss of profit, income, revenue or savings; (b) loss of use of Customer’s system(s) or networks; (c) loss of goodwill or reputation; (d) loss of, corruption of, or damage to data or software; (e) loss of or recovery of data or programs; (f) loss of business opportunity, business interruption or downtime and/or (g) special, indirect or consequential loss or damages.
9.2.2 Except as provided in Section 9.2.4(a), the Secureworks Parties’ and Customer’s respective total liability (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for all claims arising out of or in connection with any Service Document in any year beginning on the commencement date of such Service Document (and each anniversary thereof) (“Contract Year”) shall not exceed the aggregate of (a) fees paid and payable by the Customer for Services under such Service Document already performed in the relevant Contract Year, and (b) any fees that would have become payable by the Customer for Services not yet performed under such Service Document in the relevant Contract Year.
9.2.3 The foregoing limitations, exclusions and disclaimers shall apply, regardless of whether the claim for such damages is based in contract, warranty, strict liability, negligence, and tort or otherwise. Insofar as applicable law prohibits any limitation herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation permitted to the fullest extent possible under such law. The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk constituting in part the consideration for Secureworks’ sale of Services and/or Products to Customer, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities.
9.2.4 The exclusions and limitations of liability set out in (a) Section 9.2.2 do not apply to the parties’ indemnity obligations under Section 11 of this MSA; and (b) this MSA do not apply to liability arising from (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; and/or (iii) anything else that cannot be excluded or limited by law.
10. Data Privacy.
10.1 Customer authorises Secureworks to collect, use, store, transfer and otherwise process the personal data Secureworks obtains from Customer as a result of providing the Services for the purpose of complying with Secureworks’ rights and obligations under this MSA and for any additional purposes described pursuant to this MSA..
10.2 Each party expressly agrees that the Data Protection Agreement set out in Appendix B to this MSA shall apply and govern all activities concerning the processing of personal data for the purposes of this MSA.
11.1 As used in this Section 11, “Indemnified Parties” shall mean, in the case of Secureworks, Secureworks, its Affiliates and subcontractors, and each their respective directors, officers, employees, contractors and agents and in the case of Customer, Customer, its Affiliates, and each of their respective directors, officers, employees, contractors and agents. Secureworks shall indemnify the Customer Indemnified Parties from and against all claims, demands, actions, losses, expenses, liabilities, judgments, settlements, damages and costs (including all interest, penalties and legal and other professional costs and expenses) (“Claim(s)”) incurred by the Customer Indemnified Parties arising out of or in connection with any third party claim that Secureworks branded Products and / or Customer Reports and/or Services (excluding open source software incorporated within them) prepared or produced by Secureworks and delivered pursuant to this MSA infringe that third party’s IP rights enforceable in the the country(ies) in which the Products, Services or any Customer Reports are performed or prepared for Customer by Secureworks (“IPR Claim”).
11.2 If Secureworks receives prompt notice of an IPR Claim that, in Secureworks’ reasonable opinion, is likely to result in an adverse ruling, then Secureworks shall at its option: (a) obtain a right for Customer to continue using such Products, and Customer Reports or for Secureworks to continue performing the Services; (b) modify such Products, Customer Reports and/or Services to make them non-infringing; (c) replace such Products, Customer Reports and/or Services with a non-infringing equivalent; or (d) refund any prepaid charges for the allegedly infringing Services that have not been performed or provide a reasonable pro rata refund for the allegedly infringing Products and /or Customer Reports.
11.3 Customer shall: (a) promptly notify Secureworks in writing of any IPR Claim or the likelihood of any such IPR Claim; (b) provide Secureworks with the sole right to control the defence and disposition of the IPR Claim; and (c) not use Secureworks’ name in connection with any IPR Claim without Secureworks’ prior written consent. Secureworks shall not be liable for any IPR Claim to the extent that it arises from any matter set out in Section 9.1.1 (a) to (f).
11.4 Sections 11.1 and 11.2 set out the sole and exclusive remedies for any IPR Claim.
11.5 Customer shall indemnify the Secureworks Indemnified Parties from and against all Claims arising out of or in connection with any of the following: (a) Customer’s or Customer Affiliate’s failure to obtain any licences, consents, or other approvals; (b) Customer’s or Customer Affiliate’s breach of Secureworks’ IP; (c) any use of Customer Data and/or any use of Customer IP; (d) Customer’s or Customer Affiliate’s breach of any export laws; and (e) a third party’s reliance on a Customer Report, any information therein or any other results or output of the Services. In addition and without prejudice to the foregoing, Customer shall indemnify the Secureworks Indemnified Parties from and against all Claims by Customer Affiliates (other than Signing Customer Affiliate(s)).
11.6 In respect of any Claim under the indemnities set out in this Section 11, the relevant party shall: (a) mitigate any loss or damage arising from such Claim; (b) provide reasonable cooperation to the other party in the defence of such Claim; and (c) not settle or compromise any indemnity claim or make any admission of liability without the other’s prior written consent.
12.1 Secureworks and Customer acknowledge that Products and/or Services provided under this MSA may incorporate encryption, functionality, and are subject to the customs and export control laws and regulations of the United States, United Kingdom and other countries to which the Products and/or Services are delivered. Each party agrees to comply with all customs and export control laws and regulations of the United States, United Kingdom and other countries to which the Products and/or Services are delivered applicable to such party in the course of performance of its obligations under this MSA. This Section 12 shall apply notwithstanding any other terms of this MSA or any Service Order or SOW issued hereunder. This Section 12 shall survive any expiration or termination of this MSA.
12.2 Secureworks Responsibilities. Secureworks agrees that it is responsible for ensuring that the delivery of Products to Customer is in compliance with U.S. export regulations, including by applying for and obtaining any required U.S. export licenses. Secureworks’ acceptance of any order for Products is contingent upon the issuance of any export license required by the U.S. Government. Secureworks will not be liable for delays or failure to deliver Products resulting from the inability to obtain such license.
12.3 Customer Responsibilities. Customer agrees to comply with, and to cause and require its Affiliates to comply with all applicable U.S., UK and local export regulations governing the retransfer, re-export and use of the Products purchased from Secureworks. During the Term of the MSA neither Customer nor its Affiliates will transfer or re-export the Products without written permission from Secureworks. Without limiting the generality of the foregoing, Customer agrees that neither it nor its Affiliates will re-export, transfer, or share Products to or with any Sanctioned Person (defined below) or otherwise allow any Sanctioned Person to benefit from the Products or Services provided by Secureworks. Customer further agrees that it and its Affiliates are solely responsible for compliance with the applicable laws, rules and regulations governing the importation and use of the Products in the countries to which Products will be delivered, including, but not limited to, by making any required customs entry or declaration, paying all duties, taxes and fees owed as a result of the importation or use of Products by Customer, and obtaining all necessary licenses, permits or other authorizations, including those required under regulations governing the importation and use of encryption products.
12.4 Cooperation. Customer agrees to cooperate, and to cause and require its Affiliates to cooperate in providing the information necessary for Secureworks to apply for any required U.S. export licenses. Secureworks agrees to cooperate with Customer and Customer Affiliates by providing the information necessary for Customer or Customer Affiliates to apply for any required licenses, permits or other authorizations in connection with the importation and use of the Products. Notwithstanding the foregoing or any other terms of this MSA or any Service Order or SOW issued hereunder, under no circumstances shall Secureworks be required to provide any source code, or proprietary information in connection with the pursuit of any license, permit or other authorization to Customer, Customer Affiliates, or any government authority. For the purposes of this clause Sanction Person shall mean any agent, or other person that (i) has been or is designated on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”), or, to the extent applicable, any similar list of sanctioned persons issued by the United Nations Security Council, the European Union, Her Majesty's Treasury or any other relevant governmental authority administering sanctions, including the U.S. Department of State, (ii) is a national or citizen of, organized under the laws of, or resident or operating in any country or territory which is itself the subject of country-wide or territory-wide sanctions, including, but not limited to, as of the date of this MSA, Iran, Cuba, Syria, Sudan, Crimea, and North Korea, (iii) is a Person owned or controlled by any Persons described in clauses (i) and/or (ii) of this sentence, or (iv) is a person identified on the United States Department of Commerce, Bureau of Industry and Security’s “Denied Persons List” or “Entity List”.
13. Important Additional Terms.
13.1 Independent Contractor Relationship; Assignment; Subcontracting; Audit. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this MSA. Neither party will use the other party’s name (except internal use only), trademark, logos, or trade name without the prior written consent of the other party. Customer acknowledges and agrees that Secureworks has the right to assign, subcontract or delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under this MSA, or any obligations relating to the processing of Customer Data (including without limitation any personal data) , by operation of law or otherwise, provided that Secureworks shall remain responsible for the performance of Services under this MSA. Otherwise, neither party may assign this MSA without the permission of the other party which such permission shall not be unreasonably withheld or delayed; except that either party may assign this MSA without the consent of the other party to a successor in connection with a merger, sale of all or substantially all of such party’s assets, or other change of control.
13.2 Entire Agreement; Amendments. This MSA, including any appendices, and the Service Documents represent the entire agreement between Secureworks and Customer with respect to its subject matter and supersede all prior oral and written understandings, agreements, communications, and terms and conditions between the parties including, without limitation, any terms contained within a purchase order issued by Customer in connection with the Services, including, but not limited to, any separate security or privacy agreements executed by the parties. No amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties; provided, however, that the SLA(s) may be amended from time to time by Secureworks, as reasonably necessary, in its reasonable discretion as long as such amendments: (a) will have no material adverse impact on the Services, Service levels or Service credits currently being provided to Customer by Secureworks; and (b) are being effected with respect to other Secureworks customers.
13.3 Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than thirty (30) days, the other party may immediately terminate the applicable Service Document by giving written notice to the delayed party.
13.4 Audit and certifications. Except as otherwise provided in the Data Protection Agreement set out in Appendix B hereto, the parties agree that the following audit provisions shall apply. Upon a 30-day written request (or shorter notice period where required by applicable law, an order of a supervisory authority, in the event of a data breach or as otherwise agreed between the parties), the Customer (or Permitted Auditor as defined below) has the right to conduct an annual, onsite audit (which must take place during normal business hours) of Secureworks’ controls for safeguarding Customer Data. Such audit must be limited to those processing activities and facilities which are directly involved in the processing of Customer Data. Any access to sensitive or restricted facilities is strictly prohibited – in accordance with regulatory restrictions on access to other customers’ data (although a Permitted Auditor shall be entitled to observe the security operations center via a viewing window) and Customer shall not (and must ensure that any Permitted Auditor shall not) allow any sensitive documents and/or details regarding Secureworks’ policies, controls and/or procedures to leave the Secureworks location at which the audit is taking place (whether in electronic or physical form). Customer must comply at all times with Secureworks’ relevant on site policies and procedures (as notified to Customer by Secureworks). The audit should not take longer than three business days, and if the audit exceeds this timeframe, the Customer will be required to pay for resources necessary to complete the audit. In this clause the term “Permitted Auditor” shall mean a third party appointed by the Customer which is bound by equivalent obligations of confidentiality to those set out in this MSA and is not a direct competitor of Secureworks. Secureworks reserves the right to require any Permitted Auditor to execute a confidentiality agreement with Secureworks prior to the commencement of an audit.
Secureworks will on an annual basis, have an audit conducted by a reputable and experienced accounting firm in accordance with the Statement on Standards for Attestation Engagements (“SSAE”) , Reporting on Controls at a Service Organization, developed by the American Institute of Certified Public Accountants (“AICPA”), (the “Security Audit”) and have such accounting firm issue a Service Organization Control (“SOC”) 2 Type II Report (or substantially similar report in the event the SOC 2 Type II Report is no longer the industry standard) which will cover, at a minimum, the security policies, procedures and controls required by this MSA (the “Audit Report”). Upon Customer’s request, Secureworks will provide Customer a copy of Secureworks’ then current Audit Report. Customer acknowledges that the SOC 2 Type II, and/or any other information provided by Secureworks pertaining to Secureworks’ security controls, policies, procedures, etc. are considered Confidential Information of Secureworks and shall be treated by Customer in accordance with the terms and conditions of this MSA, including, but not limited to, Section 8.
Secureworks is ISO 27001 certified.
13.5 Representations; Severability; Section Headings. The parties agree that no representations, warranties, undertakings or promises have been given (express or implied) in respect of the subject matter of this MSA, other than those which are expressly stated in this MSA. Neither party shall have any remedy in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) not set out in this MSA upon which it relied in entering into this MSA. Nothing in this MSA shall limit or exclude any liability for fraud. If any provision of this MSA is void or unenforceable, the remainder of this MSA will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
13.6 Notices. Notices under this MSA must be in writing and sent by postage prepaid first-class mail or receipted courier service to the other party at the address below or to such other address (incl. facsimile or electronic) as specified in writing and will be effective upon receipt. In the case of the Customer, notices shall be sent to the address set out in the Service Document. In the case of Secureworks, notices shall be sent to:
Legal Department, Secureworks Europe Ltd.
Dell House, Cain Road
Bracknell, Berkshire RG12 1LF
This Section 13.6 shall apply for formal contract notices only and shall not limit the parties’ ability to communicate via electronic mail or other methods as agreed to by the parties for routine communications.
13.7 Governing Law, Forum. This MSA and any disputes or claims arising out of or in connection with its subject matter (including non-contractual disputes or claims) are governed by and construed in accordance with English law. The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this MSA including disputes relating to non-contractual obligations.
13.8 Third Party Rights. Except for Secureworks Parties and Indemnified Parties, any person who is not a party to this MSA shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce against the parties to this MSA any term of this MSA. Notwithstanding Section 2(1) of the Contracts (Rights of Third Parties) Act 1999, the parties may in writing vary, rescind or terminate this Agreement (whatever the nature of such variation, rescission or termination) without seeking the consent of any third party on whom this Section 13.8 confers rights.
13.9 Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this MSA or any Service Document (a “Dispute”) through face-to-face negotiation with persons fully authorized by the relevant parties to resolve the Dispute. The existence or results of any such negotiation will be treated as confidential. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity..
13.10 Limitation Period. Neither party may institute any action in any form arising out of or in connection with this MSA more than two (2) years after the cause of action has arisen except where Section 8.7 applies.
13.11. Survival. All Sections shall survive the expiration or termination of this MSA or any Service Document: except for Sections 3 and 10.
This Appendix applies to the Services set out below
Applicable to Security Services: Should an SOW include security scanning, testing, assessment, forensics, or remediation Services (“Security Services”), Customer understands that Secureworks may use various methods and software tools to probe network resources for security-related information and to detect actual or potential security flaws and vulnerabilities. Customer authorizes Secureworks to perform such Security Services (and all such tasks and tests reasonably contemplated by or reasonably necessary to perform the Security Services) on network resources with the internet protocol addresses (“IP Addresses”) identified by Customer. Customer represents that, if Customer does not own such network resources, it will have obtained consent and authorization from the applicable third party to permit Secureworks to provide the Security Services on such third party’s network resources. Secureworks shall perform Security Services during a timeframe mutually agreed upon with Customer. The Security Services, such as penetration testing or vulnerability assessments, may also entail buffer overflows, fat pings, operating system specific exploits, and attacks specific to custom coded applications but will exclude intentional and deliberate DOS (“Denial of Service”) attacks. Furthermore, Customer acknowledges that the Security Services described herein could possibly result in service interruptions or degradation regarding the Customer’s systems and accepts those risks and consequences. Upon execution of an SOW for such Security Services, Customer consents and authorizes Secureworks to provide any or all of the Security Services specified in the applicable SOW with respect to the Customer’s systems. Customer further acknowledges that it is the Customer’s responsibility to restore network computer systems to a secure configuration after the completion of Secureworks’ testing.
Applicable to Compliance Consulting Services: Should an SOW include compliance testing or assessment or other similar compliance advisory Services (“Compliance Services”), Customer understands that, although Secureworks' Compliance Services may discuss or relate to legal issues: (i) Secureworks does not provide legal advice or services; (ii) none of such Compliance Services shall be deemed, construed as or constitute legal advice; and (iii) Customer is ultimately responsible for retaining its own legal counsel to provide legal advice. Furthermore, the Customer Reports provided by Secureworks in connection with any Compliance Services shall not be deemed to be legal opinions and may not and should not be relied upon as proof, evidence or any guarantee or assurance as to Customer’s legal or regulatory compliance.
Applicable to Payment Card Industry Compliance Consulting Services: Should an SOW include payment card industry (“PCI”) compliance auditing, testing or assessment or other similar PCI compliance advisory Consulting Services (“PCI Compliance Services”), Customer understands that Secureworks' PCI Compliance Services do not constitute any guarantee or assurance that security of Customer’s systems, networks and assets cannot be breached or are not at risk. PCI Compliance Services are an assessment, as of a particular date, of whether Customer’s systems, networks, assets, and any compensating controls meet the applicable PCI standards. Mere compliance with PCI standards may not be sufficient to eliminate all risks of a security breach of Customer’s systems, networks and assets. Furthermore, Secureworks is not responsible for updating its reports and assessments, or enquiring as to the occurrence or absence of such, in light of changes to Customer’s systems, networks and assets after the date that Secureworks issues its final Customer Report pursuant to an SOW, absent a Change Order or a separately signed SOW expressly requiring the same.
Risk and Limitations: Certain Consulting Services follow a defined sampling methodology, rather than being driven by a specific end result or deliverable. This methodology aims to reduce cost while at the same time minimizing any detrimental impact on the accuracy and reliability of the results. Due to the inherent risks and limitations associated with this methodology, Secureworks cannot guarantee: (i) the outcome of its testing, assessment, forensics, or remediation methods; and/or (ii) that all weaknesses, noncompliance issues or vulnerabilities will be discovered (sub-sections (i) and (ii) together collectively referred to as the “Risks and Limitations”). Customer acknowledges and accepts these Risks and Limitations.
This Data Protection Agreement (“DPA”) forms part of the MSA between the Customer and Secureworks and shall apply where the provision of Services by Secureworks to Customer involves the processing of Personal Data (as defined below) which is subject to Privacy Laws. Except as otherwise expressly stated, Customer is the controller and Secureworks is the processor (as defined below) of the Personal Data processed under this MSA. In the event of a conflict between this DPA and the MSA, this DPA shall control with respect to its subject matter.
1. Definitions: References in this DPA to “controller”, “data subject”, “processor” and “supervisory authority” shall have the meanings ascribed to them under Privacy Laws. Capitalised terms that are not defined in this DPA shall have the meaning set out in the MSA. In this DPA:
1.1 “Data Breach” means an actual breach by Secureworks of the security obligations under this DPA leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data transmitted, stored or otherwise processed.
1.2 “Personal Data” means any information relating to an identified or identifiable natural person which is processed by Secureworks, acting as a processor on behalf of the Customer, in connection with the provision of the Services and which is subject to Privacy Laws.
1.3 “Privacy Laws” means any UK and/or European Union data protection and/or privacy related laws, statutes, directives, or regulations (and any amendments or successors thereto) to which a party to the MSA is subject and which are applicable to the Services including, without limitation, the General Data Protection Regulation 2016/679 when it comes into effect.
1.4 “processing” (and its derivatives) means any operation(s) performed on personal data, whether or not by automated means, including the collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.5 “Security Event Data” means information related to security events which is collected during Secureworks’ provision of managed security services.
1.6 “Subprocessor” means a third party engaged by Secureworks (including without limitation an Affiliate and/or subcontractor of Secureworks) in connection with the processing of the Personal Data.
2. Description of processing: a description of the processing activities to be undertaken as part of the MSA and this DPA are set out in Annex 1.
3. Compliance with laws: the parties agree to comply with their respective obligations under Privacy Laws. In particular, Customer warrants and represents (on its behalf and on behalf of each of its Affiliates where applicable) that it has obtained all necessary authorisations and consents required for compliance with Privacy Laws prior to disclosing, transferring, or otherwise making available any Personal Data to Secureworks and that it has provided appropriate notifications to data subjects describing the purpose for which their personal data will be used pursuant to this DPA and MSA.
4. Secureworks obligations
4.1 Instructions: Secureworks shall process the Personal Data only in accordance with Customer's reasonable and lawful instructions (unless otherwise required to do so by applicable law). Customer hereby instructs Secureworks to process the Personal Data to provide the Services and comply with Securework's rights and obligations under the MSA and this DPA. The MSA and DPA comprise Customer's complete instructions to Secureworks regarding the processing of Personal Data. Any additional or alternate instructions must be agreed between the parties in writing, including the costs (if any) associated with complying with such instructions. Secureworks is not responsible for determining if Customer's instructions are compliant with applicable law, however, if Secureworks is of the opinion that a Customer instruction infringes applicable Privacy Laws, Secureworks shall notify Customer as soon as reasonably practicable and shall not be required to comply with such infringing instruction.
4.2 Confidentiality: To the extent the Personal Data is confidential (pursuant to applicable law), Secureworks shall maintain the confidentiality of the Personal Data in accordance with Section 8 of the MSA and shall require persons authorised to process the Personal Data (including its Subprocessors) to have committed to materially similar obligations of confidentiality.
4.3 Disclosures: Secureworks may only disclose the Personal Data to third parties (including without limitation its Affiliates and Subprocessors) for the purpose of:
(a) complying with Customer’s reasonable and lawful instructions
(b) as required in connection with the Services and as permitted by the MSA and/or this DPA, and/or
(c) as required to comply with Privacy Laws, or an order of any court, tribunal, regulator or government agency with competent jurisdiction to which Secureworks, its Affiliates and/or Subprocessors is subject PROVIDED that Secureworks will (to the extent permitted by law) inform the Customer in advance of any disclosure of Personal Data and will reasonably co-operate with Customer to limit the scope of such disclosure to what is legally required.
4.4 Assisting with data subject rights: Secureworks shall, as required in connection with the Services and to the extent reasonably practicable, assist Customer to respond to requests from data subjects exercising their rights under Privacy Laws (including without limitation the right of access, rectification and/or erasure) in respect of the Personal Data. Secureworks reserves the right to charge Customer for such assistance if the cost of assisting exceeds a nominal amount. Secureworks shall notify Customer as soon as practicable of any request Secureworks receives from data subjects relating to the exercise of their rights under applicable Privacy Laws during the Term of the MSA (to the extent such request relates to the Personal Data).
4.5 Security: Taking into account industry standards, the costs of implementation, the nature, scope, context and purposes of the processing and any other relevant circumstances relating to the processing of the Personal Data, Secureworks shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk in respect of any Personal Data in accordance with Secureworks policies. The parties agree that the security measures described in Annex 2 (Information Security Measures) provide an appropriate level of security for the protection of Personal Data to meet the requirements of this clause.
4.6 Subprocessors: Customer agrees that Secureworks may appoint and use Subprocessors (including without limitation those that may be identified on the subcontractor list posted on the Portal, as updated from time to time) to process the Personal Data in connection with the Services PROVIDED that:
(a) Secureworks puts in place a contract in writing with each Subprocessor that imposes obligations that are (i) relevant to the services to be provided by the Subprocessors and (ii) materially similar to the rights and/or obligations granted or imposed on Secureworks under this DPA; and
(b) where a Subprocessor fails to fulfil its data protection obligations as specified above, Secureworks shall be liable to the Customer for the performance of the Subprocessor’s obligations.
4.7 Deletion of Personal Data: Upon termination of the Services (for any reason) and if requested by Customer in writing, Secureworks shall as soon as reasonably practicable delete the Personal Data, PROVIDED that Secureworks may: (a) retain one copy of the Personal Data as necessary to comply with any legal, regulatory, judicial, audit or internal compliance requirements; and/or (b) defer the deletion of the Personal Data to the extent and for the duration that any Personal Data or copies thereof cannot reasonably and practically be expunged from Secureworks’ systems; and for such retention or deferral periods as referred to in subparagraphs (a) or (b) of this clause, the provisions of this DPA shall continue to apply to such Personal Data. Secureworks reserves the right to charge Customer for any reasonable costs and expenses incurred by Secureworks in deleting the Personal Data pursuant to this clause.
4.8 Demonstrating compliance: Secureworks shall, upon reasonable prior written request from Customer (such request not to be made more frequently than once in any twelve month period), provide to Customer such information as may be reasonably necessary to demonstrate Secureworks’ compliance with its obligations under this DPA.
4.9 Audit and inspections: Where Customer reasonably considers the information provided under clause 4.8 above is not sufficient to demonstrate Secureworks’ compliance with this DPA, Customer may request reasonable access to Secureworks’ relevant processing activities in order to audit and/or inspect Secureworks’ compliance with this DPA PROVIDED THAT:
(a) Customer gives Secureworks reasonable prior written notice of at least thirty (30) days before any audit or inspection (unless a shorter notice period is required by Privacy Laws, an order of a supervisory authority, otherwise agreed between the parties or in the event of a Data Breach)
(b) audits or inspections may not be carried out more frequently than once in any twelve month period (unless required more frequently by Privacy Laws, an order of a supervisory authority, otherwise agreed between the parties or in the event of a Data Breach)
(c) Customer submits to Secureworks a detailed audit plan at least two weeks in advance of the proposed audit date describing the proposed scope, duration and start date of the audit. Secureworks shall review the audit plan and provide Customer with any material concerns or questions without undue delay. The parties will then reasonably cooperate to agree a final audit plan
(d) Secureworks may restrict access to information in order to avoid compromising a continuing investigation, violating law or violating confidentiality obligations to third parties. Any access to sensitive or restricted facilities by Customer is strictly prohibited due to regulatory restrictions on access to other customers’ data, although Customer and/or its auditor shall be entitled to observe the security operations center via a viewing window). Customer shall not (and must ensure that its auditor shall not) allow any sensitive documents and/or details regarding Secureworks’ policies, controls and/or procedures to leave the Secureworks location at which the audit or inspection is taking place (whether in electronic or physical form)
(e) Customer carries out the audit or inspection during normal business hours and without creating a business interruption to Secureworks
(f) the audit or inspection is carried out in compliance with Secureworks’ relevant on site policies and procedures
(g) where the audit is carried out by a third party on behalf of the Customer, such third party is bound by similar obligations to those set out in Section 8 of the MSA (Confidentiality) and is not a direct competitor of Secureworks. Secureworks reserves the right to require any such third party to execute a confidentiality agreement directly with Secureworks prior to the commencement of an audit or inspection, and
(h) except where the audit or inspection discloses a failure on the part of Secureworks to comply with its obligations under this DPA, Customer shall pay all reasonable costs and expenses (including without limitation any charges for the time engaged by Secureworks, its personnel and professional advisers) incurred by Secureworks in complying with this clause.
Customer shall provide to Secureworks a copy of any audit reports generated in connection with an audit carried out under this clause, unless prohibited by applicable law. Customer may use the audit reports only for the purposes of meeting its regulatory audit requirements and/or confirming compliance with the requirements of this DPA. The audit reports shall be Confidential Information of the parties.
5. International transfers: Secureworks may, in connection with the provision of the Services, or in the normal course of business, make international transfers of the Personal Data to its Affiliates and/or Subprocessors. When making such transfers, Secureworks shall ensure appropriate protection is in place to safeguard the Personal Data transferred under or in connection with the MSA and this DPA. Where the provision of Services involves the transfer of Personal Data from countries within the European Economic Area (“EEA”) to countries outside the EEA (which are not subject to an adequacy decision under Directive 95/46/EC or the GDPR once in effect) such transfer shall be subject to the following requirements:
5.1 Secureworks has implemented appropriate security measures to adequately protect the transfer of such Personal Data
5.2 Secureworks has in place intra-group agreements with any Affiliates which may have access to the Personal Data, which agreements shall incorporate the EU Commission approved Standard Contractual Clauses (“Standard Contractual Clauses”); and
5.3 Secureworks has in place agreements with its Subprocessors that incorporate the Standard Contractual Clauses (as appropriate).
6. Data Breaches: Where a Data Breach is caused by Secureworks’ failure to comply with its obligations under this DPA, Secureworks shall:
6.1 notify Customer without undue delay after establishing the occurrence of the Data Breach and shall, to the extent such information is known or available to Secureworks at the time, provide Customer with details of the Data Breach, a point of contact and the measures taken or to be taken to address the Data Breach
6.2 reasonably cooperate and assist Customer with any investigation into, and/or remediation of, the Data Breach (including, without limitation and where required by Privacy Laws, the provision of notices to regulators and affected individuals)
6.3 not inform any third party of any Data Breach relating to the Personal Data without first obtaining Customer’s prior written consent, except as otherwise required by applicable law provided that nothing in this clause shall prevent Secureworks from notifying other customers whose personal data may be affected by the Data Breach, and
In the event Customer intends to issue a notification regarding the Data Breach to a supervisory authority, other regulator or law enforcement agency, Customer shall (unless prohibited by law) allow Secureworks to review the notification and Customer shall have due regard to any reasonable comments or amendments proposed by Secureworks.
7. Liability and Costs: Neither Secureworks nor any Subprocessor shall be liable for any claim brought by Customer or any third party arising from any action or omission by Secureworks and/or Subprocessors to the extent such action or omission resulted from compliance with Customer’s instructions.
8. Security Event Data: Secureworks will process Security Event Data as part of its provision of Services. Customer acknowledges that Secureworks may also process Security Event Data in order to develop, enhance and/or improve its security services and the products and services it offers and provides to customers. Secureworks shall be the controller in respect of any personal data in the Security Event Data and, for the duration of its processing of such Security Event Data, Secureworks shall (i) comply with applicable Privacy Laws and (ii) safeguard such Security Event Data with security measures that are no less protective than those set out in this DPA. Restrictions on the disclosure and transfer of Personal Data in this DPA shall not apply in connection with Secureworks’ processing of the Security Event Data for the purposes described in this clause, however, Secureworks shall not disclose any Security Event Data that is traceable to Customer to any third parties (other than Affiliates and Subprocessors) unless permitted under the MSA and/or this DPA, or the disclosure is required in order to comply with applicable law or legal process. Secureworks shall not be required to return or delete Security Event Data upon termination of the Services (for any reason). Customer shall ensure its personnel and any other data subjects whose personal data is processed by Secureworks in connection with the Services are appropriately notified of the fact their personal data may be processed in connection with the development, enhancement and/or provision of Secureworks’ products or services as described in this clause. If Customer is compelled by a legally binding order (e.g. of a court or regulatory authority of competent jurisdiction) to have the Security Event Data deleted, then Secureworks agrees, as appropriate, to anonymise, pseudonymise or delete the Security Event Data that is the subject of the binding order as soon as practicable.
9. Privacy Impact Assessments: Secureworks shall provide reasonable cooperation and assistance to Customer, to the extent applicable in relation to Secureworks’ processing of the Personal Data and within the scope of the agreed Services, in connection with any data protection impact assessment(s) which the Customer may carry out in relation to the processing of Personal Data to be undertaken by Secureworks, including any required prior consultation(s) with supervisory authorities. Secureworks reserves the right to charge Customer a reasonable fee for the provision of such cooperation and assistance.
Annex 1 - Processing description
Subject matter and purpose
Subject to the terms of the MSA, Secureworks provides information security services for the Customer and processes the Personal Data for the purpose of providing such services as set out in applicable Service Orders, SOWs, SLAs, Service descriptions or otherwise
Duration of processing
Secureworks will retain and process the Personal Data for the term of the MSA and in accordance with the provisions of this DPA regarding the return or deletion of the Personal Data
The Personal Data transferred may concern the following categories of data subjects: individuals who use and access Customer information technology systems for which Secureworks provides services
Type of personal data
For MSS: any Personal Data contained:
For SRC (Consulting) Services: Personal Data which may be processed by Secureworks if necessary for the provision of the Consulting Services may include any or all of the following:
Annex 2 – Information Security Measures
This information security overview applies to Provider’s corporate controls for safeguarding Personal Data. Provider’s information security program enables the workforce to understand their responsibilities.
Provider has implemented corporate information security practices and standards that are designed to safeguard Provider’s corporate environment and to address: (1) information security; (2) system and asset management; (3) development; and (4) governance. These practices and standards are approved by Provider’s executive management and undergo a formal review on an annual basis.
It is the responsibility of the individuals across the organization to comply with these practices and standards. To facilitate the corporate adherence to these practices and standards, the function of information security provides:
1. Strategy and compliance with policies/standards and regulations, awareness and education, risk assessments and management, contract security requirements management, application and infrastructure consulting, assurance testing and drives the security direction of the company.
2. Security testing, design and implementation of security solutions to enable security controls adoption across the environment.
3. Security operations of implemented security solutions, the environment and assets, and manage incident response.
4. Forensic investigations with security operations, legal, data protection and human resources for investigations including eDiscovery and eForensics.
Asset Classification and Control
Provider’s practice is to track and manage physical and logical assets. Examples of the assets that Provider IT might track include:
- Information Assets, such as identified databases, disaster recovery plans, business continuity plans, data classification, archived information.
- Software Assets, such as identified applications and system software.
- Physical Assets, such as identified servers, desktops/laptops, backup/archival tapes, printers and communications equipment.
The assets are classified based on business criticality to determine confidentiality requirements. Industry guidance for handling personal data provides the framework for technical, organizational and physical safeguards. These may include controls such as access management, encryption, logging and monitoring, and data destruction.
As part of the employment process, employees undergo a screening process applicable per regional law. Provider’s annual compliance training includes a requirement for employees to complete an online course and pass an assessment covering information security and data privacy. The security awareness program may also provide materials specific to certain job functions.
Physical and Environmental Security
Provider uses a number of technological and operational approaches in its physical security program in regards to risk mitigation. Provider’s security team works closely with each site to determine appropriate measures are in place and continually monitor any changes to the physical infrastructure, business, and known threats. They also monitor best practice measures used by others in the industry and carefully select approaches that meet both uniqueness’s in business practice and expectations of Provider as a whole. Provider balances its approach towards security by considering elements of control that include architecture, operations, and systems.
Communications and Operations Management
The IT organization manages changes to the corporate infrastructure, systems and applications through a centralized change management program, which may include, testing, business impact analysis and management approval where appropriate. Incident response procedures exist for security and data protection incidents, which may include incident analysis, containment, response, remediation, reporting and the return to normal operations. To protect against malicious use of assets and malicious software, additional controls may be implemented based on risk. Such controls may include, but are not limited to, information security policies and standards, restricted access, designated development and test environments, virus detection on servers, desktop and notebooks; virus email attachment scanning; system compliance scans, intrusion prevention monitoring and response, logging and alerting on key events, information handling procedures based on data type, e-commerce application and network security, and system and application vulnerability scanning.
Access to corporate systems is restricted, based on procedures to ensure appropriate approvals. To reduce the risk of misuse, intentional or otherwise, access is provided based on segregation of duties and least privileges. Remote access and wireless computing capabilities are restricted and require that both user and system safeguards are in place. Specific event logs from key devices and systems are centrally collected and reported on an exceptions basis to enable incident response and forensic investigations.
System Development and Maintenance
Publicly released third party vulnerabilities are reviewed for applicability in the Provider environment. Based on risk to Provider’s business and customers, there are pre-determined timeframes for remediation. In addition, vulnerability scanning and assessments are performed on new and key applications and the infrastructure based on risk. Code reviews and scanners are used in the development environment prior to production to proactively detect coding vulnerabilities based on risk. These processes enable proactive identification of vulnerabilities as well as compliance.
The information security, legal, privacy and compliance departments work to identify regional laws, regulations applicable to Provider corporate. These requirements cover areas such as, intellectual property of the company and our customers, software licenses, protection of employee and customer personal information, data protection and data handling procedures, trans-border data transmission, financial and operational procedures, regulatory export controls around technology, and forensic requirements. Mechanisms such as the information security program, the executive privacy council, internal and external audits/assessments, internal and external legal counsel consultation, internal controls assessment, internal penetration testing and vulnerability assessments, contract management, security awareness, security consulting, policy exception reviews and risk management combine to drive compliance with these requirements.