DATA PROTECTION ADDENDUM 

THIS DATA PROTECTION ADDENDUM (“DPA“) is made a part of the QTS Terms and Conditions for Vendors (“QTS Terms and Conditions”) or other purchasing agreement referencing this DPA (in either case, the “Principal Agreement“) and is between Quality Technology Services, LLC or its affiliate executing the Principal Agreement (“QTS“) and the vendor executing the Principal Agreement (“Vendor“).  This DPA supersedes in its entirety any prior Data Protection Addendum, Data Processing Addendum, Data Protection Agreement or Data Processing Agreement entered into by the parties in connection with the Principal Agreement and may be updated from time to time by QTS to address changes in applicable privacy laws and practices.  

 1. Definitions 
1.1 The terms used in this DPA have the meanings set forth in this DPA. Capitalized terms not otherwise defined herein have the meaning given to them in the Principal Agreement or under applicable Data Protection Laws. Except as modified below, the terms of the Principal Agreement remain in full force and effect. In this DPA, each term defined below has the meaning assigned to it below and cognate terms shall be construed accordingly: 
1.1.1 “CCPA” means the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020. 
1.1.2 “Cessation Date” has the meaning assigned to it in Section 10.1. 
1.1.3 “Contracted Processor” means Vendor or a Subprocessor. 
1.1.4 “Data Protection Laws” means European Data Protection Laws, US Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. 
1.1.5 “EEA” means the European Economic Area. 
1.1.6 “European Data Protection Laws” means: (i) the EU GDPR; (ii) the UK GDPR; and (iii) any and all applicable national data protection laws made under, pursuant to, or that apply in conjunction with any of (i), (ii), or (iii), in each case as may be amended or superseded from time to time. 
1.1.7 “EU GDPR” means European Union General Data Protection Regulation 2016/679. 
1.1.8 “QTS Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of QTS pursuant to or in connection with the Principal Agreement including any Personal Data of any QTS Affiliate or QTS Customer.  
1.1.9 “Restricted Transfer“ means: 
1.1.9.1   a transfer of QTS Personal Data from QTS to a Contracted Processor; or 
1.1.9.2   an onward transfer of QTS Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, 

in each case: 

1.1.9.3  where the EU GDPR applies, such transfer of QTS Personal Data is to a country outside of the European Economic Area which is not subject to an adequacy determination by the Commission; and 

1.1.9.4  where the UK GDPR applies, such transfer of QTS Personal Data is to a country outside of the United Kingdom which is not based on adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018; or  

1.1.9.5  where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established below. 

1.1.10 “Security Incident” has the meaning set forth in the Principal Agreement and includes any Personal Data Breach. 

1.1.11 “Sensitive Personal Data” means any Personal Data that would qualify as sensitive or other similar terms applicable Data Protection Laws.  At a minimum, Sensitive Personal Data includes any data regarding children, the location of an individual or device, race, ethnicity, religion, health or medical information, sexual orientation, citizenship or immigration status, and genetic or biometric information.  

1.1.12 “Services” means the services and other activities to be supplied to or carried out by or on behalf of Vendor for QTS pursuant to the Principal Agreement.

1.1.13  “Standard Contractual Clauses” means: (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council (“EU SCCs“); and (ii) where the UK GDPR applies, standard data protection clauses adopted pursuant to or permitted under Article 46 of the UK GDPR (“UK SCCs“).  The Standard Contractual Clauses are only applicable to this DPA in the event of a Restricted Transfer under the GDPR  

1.1.14 “Subprocessor” means any person (including any third party and any Vendor Affiliate, but excluding an employee of Vendor or any of its sub-contractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process QTS Personal Data on behalf QTS in connection with the Principal Agreement.

1.1.15 “UK GDPR” means the EU GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018.  

1.1.16 “US Data Protection Laws” means the data protection and privacy laws and related regulations of the United States and each of its states and territories including, without limitation, the CCPA.  

1.1.17 “Vendor Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vendor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. 

1.2 The terms, “Commission“, “Controller“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, “Processor“, “Processing” and “Supervisory Authority” have the same meaning as in the European Data Protection Laws and applicable US Data Protection laws. The terms, “Business Purpose“, “Consumer“, “Sell“, “Share“, “Service Provider“, and “Personal Information” have the same meaning as in the US Data Protection Laws. With respect to the US Data Protection Laws, the term Personal Data means and includes Personal Information as defined in the US Data Protection Laws.  

2. Authority 

Vendor represents and warrants that Vendor’s entry into this DPA as agent for and on behalf of any Vendor Affiliate was duly and effectively authorized by that Vendor Affiliate before that Vendor Affiliate Processed any QTS personal Data on behalf of QTS or was subsequently ratified by that Vendor Affiliate.  

3. Processing of QTS Personal Data 

3.1 Vendor and each Vendor Affiliate shall (a) comply with all applicable Data Protection Laws in the Processing of QTS Personal Data; and (b) not Process QTS Personal Data other than on QTS’s documented instructions as set out in this DPA and its Annexes unless Processing is required by Data Protection Laws to which the relevant Contracted Processor is subject, in which case Vendor or the relevant Vendor Affiliate shall, to the extent permitted by Data Protection Laws, inform QTS of that legal requirement before the relevant Processing of that QTS Personal Data.  

3.2 QTS instructs Vendor and each Vendor Affiliate (and authorizes Vendor and each Vendor Affiliate to instruct each Subprocessor) to Process QTS Personal Data as a Processor and transfer QTS Personal Data to any country or territory as reasonably necessary for the provision of the Services and consistent with the Principal Agreement and in accordance with the Annexes to this DPA. 

3.3 Vendor is acting solely as a Service Provider with respect to Personal Data, and QTS has the exclusive authority to determine the purposes for and means of Processing the Personal Data. 

3.4 Vendor will Process Personal Data only (i) for a Business Purpose and (ii) on behalf of QTS, for the sole purpose of performing the Services specified in the Principal Agreements and Vendor will not collect, retain, use, disclose or otherwise Process Personal Data for any other purpose. 

3.5 Vendor will not Sell or Share Personal Data, or use or otherwise Process Personal Data for monetary or other valuable consideration, otherwise than as provided in the Principal Agreement. 

3.6 Vendor will not retain, use, disclose or otherwise Process Personal Data outside of the direct business relationship between Vendor and QTS. 

3.7 Vendor may not derive information from Personal Data for any purpose other than to perform Services under a Principal Agreement with QTS. 

3.8 Vendor may not engage or communicate with a Data Subject in any way, whether directly or indirectly (including, without limitation, via interest-based advertising, mobile messaging, contextual online experiences, online ad-serving, email, telephone, social media, and location-aware technologies) except under written agreement between Vendor and QTS that specifies the means and methodology of, and limitations on, the media or communication channel in question. 

3.9 Vendor may only Process Personal Data for as long as the applicable Principal Agreement, relationship, or arrangement between Vendor and QTS authorizes it, and only to benefit QTS (and not Vendor or any of Vendor’s other clients or customers). 

3.10 Vendor will not Process Sensitive Personal Data.  

4. Vendor and Vendor Affiliate Personnel 

4.1 Vendor and each Vendor Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to QTS Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know and/or access the relevant QTS Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Data Protection Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality. 

4.2 Vendor acknowledges and confirms that Vendor does not Process Personal Data from QTS in exchange for monetary or other valuable consideration, and that Vendor may not have, derive, or exercise any rights or benefits regarding Personal Data, except to Process the Personal Data as necessary to deliver Services to QTS pursuant to a Principal Agreement between Vendor and QTS. 

4.3 The Parties acknowledge and agree that QTS has no knowledge or reason to believe that Vendor is unable to comply with the provisions of this DPA or any applicable provisions of the CCPA. 

4.4 Vendor certifies that Vendor understands and will comply with the requirements and restrictions set forth in these standards, and with all applicable provisions of the Data Protection Laws. 

5. Security 

5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Vendor and each Vendor Affiliate shall implement appropriate technical and organizational measures to protect QTS Personal Data from and against a Security Incident including the security program described in Section 12.2 of the Principal Agreement or analogous provision of a purchasing form other than the QTS Terms and Conditions. 

5.2 In assessing the appropriate level of security, Vendor and each Vendor Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Security Incident. 

5.3 Personal Data processed must be encrypted while at rest and during transit using current encryption standards. For data at rest this means that all devices used by the Vendor and each Vendor Affiliate must have full-disk encryption or equivalent. Vendor and each vendor Affiliate will use email service with TLS1.2 or equivalent implemented. If cloud solution providers are used to store data, data encryption will be implemented. Multi-factor authentication must be used for access to Personal Data.  Vendor and each vendor Affiliate will use frequently updated anti-malware software, firewalls, and password nomenclature. 

6. Subprocessing 

6.1 QTS authorizes Vendor and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement. 

6.2 Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate listed on a URL made available to QTS as of the date of this DPA, subject to Vendor and each Vendor Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.    

6.3 Vendor shall give QTS prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor, which may be given by posting details of such addition or removal at URL described above. If, within 30 days of receipt of that notice, QTS notifies Vendor in writing of any objections (on reasonable grounds relating to Data Protection Laws) to the proposed appointment: Vendor shall work with QTS in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and where such a change cannot be made within 30 days from Vendor’s receipt of QTS’s notice, notwithstanding anything in the Principal Agreement, QTS may by written notice to Vendor with immediate effect terminate the Principal Agreement to the extent that it relates to the Services which require the use of the proposed Subprocessor. 

6.4 With respect to each Subprocessor, Vendor or the relevant Vendor Affiliate shall: 
6.4.1  before the Subprocessor first Processes QTS Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for QTS Personal Data required by the Principal Agreement; and 
6.4.2  ensure that the arrangement between (a) Vendor, or (b) the relevant Vendor Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for QTS Personal Data as those set out in this DPA and meet the requirements of article 28(3) of the GDPR and/or equivalent provisions of any other Data Protection Law. 

6.5  Vendor and each Vendor Affiliate shall ensure that each Subprocessor performs the obligations under this DPA as they apply to Processing of QTS Personal Data carried out by that Subprocessor, as if it were party to this DPA in place of Vendor. 

6.6  If an applicable US Data Protection Law provides QTS or its Data Subjects the right to object to a Subprocessor and QTS provides Vendor written notice of objection, Vendor will work with QTS in good faith to arrange for the performance of the Services without the use of such subcontractor, to the extent reasonably practicable.  If such arrangement is not reasonably practicable, QTS may, by written notice to Vendor, terminate the Principal Agreement to the extent that it relates to the Services which require the use of such Subprocessor. 

6.7  Where Vendor provides to a third party access to Personal Data, or contract any of Vendor’s rights or obligations concerning Personal Data to a third party, Vendor will enter into a written agreement with each such third party that imposes obligations on the third party that are at least equivalent to those imposed on Vendor this DPA.  By written agreement and through technical, organizational, and physical measures, Vendor must (i) limit such third party’s access to and Processing of Personal Data to that which is solely necessary to deliver the Services under a Principal Agreement between Vendor and QTS and (ii) prohibit such third party from Selling or Sharing Personal Data. 

7.  Data Subject Rights 

7.1  Taking into account the nature of the Processing, Vendor and each Vendor Affiliate shall assist QTS by implementing appropriate technical and organizational measures for the fulfilment of QTS’s obligations, as reasonably understood by QTS, to respond to requests to exercise Data Subject rights under the Data Protection Laws. 

7.2  Vendor shall: 

7.2.1 promptly notify QTS if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of QTS Personal Data;  

7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of QTS or the relevant QTS Affiliate or as required by Data Protection Laws to which the Contracted Processor is subject, in which case Vendor shall to the extent permitted by Data Protection Laws inform QTS of that legal requirement before the Contracted Processor responds to the request;  

7.2.3 immediately inform QTS in writing of any requests with respect to Personal Data received from QTS’ customers, consumers, employees or others; 

7.2.4 cooperate with QTS as needed by QTS regarding Data Subject rights, including enabling (i) access to a Data Subject’s Personal Data, (ii) enabling deletion of a Data Subject’s Personal Data, (iii) delivering information about the categories of sources from which the Personal Data is collected, (iv) delivering information about the category of Service Provider that Vendor is, or (v) providing information about the categories or specific pieces of a Data Subject’s Personal Data that Vendor Processes on QTS’s behalf, including by providing the requested information in a portable and, to the extent technically feasible, readily useable format that allows a Data Subject to transmit the information to another entity without hindrance; and 

7.25 upon QTS’s request, immediately delete a particular Data Subject’s Personal Data from Vendor‘s records and direct any relevant contractors or agents to delete such Personal Data from their records.  Vendor will delete such Personal Data in accordance with the National Institute of Standards and Technology (NIST) Special Publication 800-88, Guidelines for Media Sanitization standards. If Vendor is unable to delete the Personal Data for reasons permitted under the CCPA, Vendor will (i) promptly inform QTS of the reason(s) for Vendor‘s refusal of the deletion request, (ii) ensure the privacy, confidentiality, and security of such Personal Data, and (iii) delete the Personal Data promptly after the reason for Vendor‘s refusal has expired. 

8. Personal Data Breach 

8.1  Vendor shall notify QTS of any Personal Data Breach or Security Incident in accordance with Section 12.2 of the Principal Agreement (or the analogous provision of a Principal Agreement on a purchasing form other than QTS Terms and Conditions).  

8.2  Vendor shall co-operate with QTS and take such reasonable commercial steps as are directed by QTS to assist in the investigation, mitigation and remediation of each such Personal Data Breach. 

9. Data Protection Impact Assessment and Prior Consultation 

Vendor and each Vendor Affiliate shall provide reasonable assistance to QTS with any data protection impact assessments, transfer impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which are required of QTS by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of QTS Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors. 

10. Deletion or return of QTS Personal Data 

10.1 Subject to sections 10.2 and 10.3 Vendor and each Vendor Affiliate shall promptly and in any event within 15 days of the date of cessation of any Services involving the Processing of QTS Personal Data (the “Cessation Date“), delete and procure the deletion of all copies of QTS Personal Data. 

10.2 Subject to section 10.3, QTS may in its absolute discretion by written notice to Vendor within 10 days of the Cessation Date require Vendor and each Vendor Affiliate to (a) return a complete copy of all QTS Personal Data to QTS by secure file transfer in such format as is reasonably notified by QTS to Vendor; and (b) delete and procure the deletion of all other copies of QTS Personal Data Processed by any other Contracted Processor. Vendor and each Vendor Affiliate shall comply with any such written request within 30 days of the Cessation Date. 

10.3 Each Contracted Processor may retain QTS Personal Data to the extent required by Data Protection Laws and only to the extent and for such period as required by Data Protection Laws and always provided that Vendor and each Vendor Affiliate shall ensure the confidentiality of all such QTS Personal Data and shall ensure that such QTS Personal Data is only Processed as necessary for the purpose(s) specified in the Data Protection Laws requiring its storage and for no other purpose.  

10.4 Vendor shall provide written certification to QTS that it and each Vendor Affiliate has fully complied with this section 10 within 45 days of the Cessation Date. 

11. Audit Rights 

11.1 Vendor and each Vendor Affiliate shall make available to QTS on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by QTS or an auditor mandated by QTS in relation to the Processing of the QTS Personal Data by the Contracted Processors.  At QTS’s request, Vendor or the applicable Vendor affiliate will request from Contracted Processors summaries of certifications or audit reports for technical and organizational measures corresponding to ISO27002 or SOC2 standards and provide such certifications or audit reports to QTS to the extent available. 

12. Restricted Transfers (If applicable in the event of a Restricted Transfer under the GDPR) 

12.1 The parties agree that when the transfer of QTS Personal Data from QTS to Vendor or a Vendor Affiliate is a Restricted Transfer it shall be subject to the appropriate Standard Contractual Clauses as follows: 

12.1.1 in relation to QTS Personal Data that is protected by the EU GDPR, the EU SCCs will apply completed as follows: 

12.1.1.1 Module Two will apply to the extent that QTS is a Controller of QTS Personal Data; 

12.1.1.2 Module Three will apply to the extent that QTS is a Processor of QTS Personal Data; 

12.1.1.3 in Clause 7, the optional docking clause applies; 

12.1.1.4 in Clause 9, Option 2 applies, and the time period for prior notice of Subprocessor changes is as set out in section 6.3 of this DPA; 

12.1.1.5 in Clause 11, the optional language does not apply; 

12.1.1.6 in Clause 17, Option 1 applies, and the EU SCCs shall be governed by the law of the Netherlands; 

12.1.1.7 in Clause 18(b), disputes shall be resolved before the courts of the Netherlands. 

12.1.1.8 Annex I of the EU SCCs shall be deemed completed with the information set out in Annex I to this DPA as separately provided by Vendor to QTS; 

12.1.1.9 Annex II of the EU SCCs shall be deemed completed with the information set out in Annex II to this DPA as separately provided by Vendor to QTS; and 

12.1.2  in relation to QTS Personal Data that is protected by the UK GDPR, the UK SCCs will apply along with the provisions of clause 12.1.1 together with the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the Information Commissioner.  

12.2  Neither Vendor nor any Vendor Affiliate shall participate in (nor permit any Subprocessor to participate in) any other Restricted Transfers of Data (whether as an exporter or an importer of QTS Personal Data) unless the Restricted Transfer is made in full compliance with European Data Protection Laws and pursuant to Standard Contractual Clauses implemented between the relevant exporter and importer of the Data.  

13. General Terms 

Governing law and jurisdiction 

13.1  Except as may otherwise be required by Data Protection Laws or the Standard Contractual Clauses: 

13.1.1 the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and 

13.1.2 this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.  

Order of precedence 

13.2 Nothing in this DPA reduces Vendor’s or any Vendor Affiliate’s obligations under the Principal Agreement in relation to the protection of QTS Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) QTS Personal Data in a manner which is prohibited by the Principal Agreement or applicable Data Protection Laws. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses prevail. 

13.3 Subject to Section 13.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA prevail. 

*  *  *  *  * 

Annex I 

Data Processing Description 

(To be completed if applicable to a Restricted Transfer under the GDPR) 
 

This Annex I forms part of the DPA and describes the Processing that Vendor and Vendor Affiliates will perform on behalf of QTS.  
 

1. LIST OF PARTIES

Controller(s) / Data exporter(s):  
 

 
Processor(s) / Data importer(s):  

В. DESCRIPTION OF TRANSFER  
 

Annex II 

Technical and Organisational  
Security Measures 
(To be completed if applicable to a Restricted Transfer under the GDPR) 

Description of the technical and organisational measures implemented by the processor(s) / data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons. 

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller (and, for transfers from a processor to a sub-processor, to the data exporter).