“Customer Content” (or “Your Content”) is any content that you, as a customer, or your users upload into a Cloud Service for processing, storage, or hosting in connection with your account. In the context of Support Services, “Customer Content” is any content you provide to VMware as a part of Support Services. The definition of “Customer Content” can be found in the VMware General Terms. For example, Customer Content includes data that you or your users store in Workspace ONE. Importantly, your account information, including names, usernames, phone numbers, and billing information associated with your account, is not included in the definition of “Customer Content”, nor any information VMware collects in connection with your use of its Cloud Services. Rather, VMware will handle that information in accordance with its Privacy Notice.

You always retain ownership of Customer Content. You determine which VMware Cloud Services you use to process, store, and host Customer Content, and what information you upload into the Cloud Service as Customer Content. Also, VMware will not access or use Customer Content for any purpose except as necessary to provide the Cloud Service to you or as set forth and permitted in its VMware General Terms with you. Lastly, VMware does not use Customer Content for marketing or advertising.

VMware provides enterprise solutions which enable its customers to build, manage, secure and run applications across multiple systems and environments. Although VMware believes the nature of the service offerings it provides to its customers won’t generally warrant a direct government access request to Customer Content, VMware took the following steps to comply with the Schrems II ruling and to assist customers in their own compliance efforts in relation to data they process as a controller:

Strengthened Contractual Commitments Regarding Government Access Requests
VMware updated the ‘Required Disclosure’ section of its VMware General Terms to clarify how VMware handles government access requests by adding the following commitments:

Where customer notification is not legally prohibited, VMware will:

• Notify the Customer: Notify its customers of any demand for disclosure of customer’s content.

• Refer Government Agency to the Customer: Inform the relevant government authority that VMware is a service provider acting on the customer’s behalf and all requests for access to customer’s content should be directed in writing to the contact person the customer has identified to us, or the customer’s legal department.

• Limit Access: Only provide access to customer’s content with the customer’s authorization. If the customer requests, we will, at the customer’s expense, take reasonable steps to contest any demand.

In the event VMware is legally prohibited from notifying the customer, VMware will:

• Evaluate Legal Validity: VMware will evaluate the demand for disclosure to determine whether it is legally valid and binding.

• Challenge Unlawful Requests: VMware will challenge the order if it reasonably believes the order does not comply with applicable law.

• Limit Scope of Disclosure: VMware will limit the scope of any disclosure to only the information we are required to disclose and will disclose the information in accordance with applicable law.

Transparency Regarding Process for Handling Government Access Requests and US Authorities

To assist customers in further understanding VMware’s commitments and process for handling government access requests, including commitments set forth in VMware’s BCR’s, VMware has prepared VMware Principles for Handling Government Requests to Access Customer Content.

Further, VMware has prepared the VMware Statement regarding application of FISA Section 702 and Executive Order 12333 in view of Schrems II to address concerns about U.S. intelligence agencies having access to data transiting from the EU to the U.S. and to assist customers in understanding the likely application of two U.S. authorities: Executive Order (EO)12333 and the Foreign Intelligence Surveillance Act (FISA) Section 702. VMware strongly believes there is a low likelihood that it would be subject to Section 702 or EO 12333 in relation to its provision of the service offerings given the nature of the services it provides.

Updated Contracts with Sub-Processors to Ensure Legal Basis for Transferring Personal Data

Since the invalidation of the EU-U.S. Privacy Shield, VMware has implemented Standard Contractual Clauses with all its sub-processors who previously relied on the EU-US Privacy Shield as a data transfer mechanism. In its capacity as a data processor, VMware relies on Binding Corporate Rules to transfer Personal Data outside the EU in connection with the provision of the applicable VMware service offerings as set forth in VMware’s Data Processing Addendum.

Technical and Organizational Measures

VMware confirms its commitment to implement and maintain appropriate technical and organizational measures as set forth in VMware’s Data Processing Addendum. VMware’s Trust Center outlines the third-party certifications and audits VMware maintains in relation to its service offerings. Given the nature of the VMware service offerings, customers also have control over how they configure the service offerings, and can implement any necessary administrative and technical controls as required to protect the data that is processed in connection with their use of the applicable service offering. In many instances, VMware provides both on-premise and hosted solutions for customers to choose from when managing their systems and infrastructure.

Transfer Impact Assessments
VMware implemented a process for conducting transfer impact assessments as further detailed in the TIA FAQ. Further, VMware updated its Binding Corporate Rules for Processors (BCR-Ps), as approved by the supervisory authorities, to include a commitment to conduct transfer impact assessments. See VMware’s Transfer Impact Assessment Procedure set forth in its BCR-Ps.

Transparency Regarding the Types of Data processed by VMware Service – Datasheets
The European Data Protection Board (EDPB) in its FAQs on “Schrems II" outlined that it is necessary to consider the types of data transferred as one factor in determining whether there is an adequate level of protection surrounding the transfer of personal data outside the EU, and that controllers should conduct a case-by-case analysis to determine the risks posed by such transfer. To assist customers in understanding the types of data processed in connection with their use of VMware service offerings, VMware provides Service Descriptions for each service offering, and makes available datasheets for certain service offerings in the Privacy section of the VMware Trust Center. For Workspace One service offerings, VMware also makes available the Workspace One Disclosure.

VMware engages and uses third parties to perform services on its behalf in connection with the provision of VMware service offerings or Support & Subscription Services. In connection with the engagement of third parties who process personal data as a sub-processor (as those terms are defined in Data Processing Addendum), VMware has implemented the following processes and procedures:

1. Contractual commitment and international data transfers: VMware enters into data processing agreements with all its sub-processors, which require the sub-processors to maintain proper privacy, security and confidentiality of personal data on terms that are substantially similar to the contractual commitments VMware makes to its own customers in the Data Processing Addendum. VMware relies on the EU Standard Contractual Clauses unless there is another legitimate data transfer mechanism in place and the sub-processor makes appropriate contractual commitments.
   
   
2. Privacy review process and privacy by design: VMware has established a centralized end-to-end third-party vendor management process to onboard new suppliers, including initiating, conducting and tracking third-party privacy and security reviews using centralized tools to assist with its compliance efforts. The VMware Privacy Team conducts detailed privacy reviews of the services provided by Sub-processors, including determining the categories of personal data processed and the processing purposes. The reviews include the implementation of privacy controls for mitigating the risks associated with sub-processors’ access to and processing of Personal Data and ensuring regulatory compliance.
   
   
3. Security review process: VMware maintains a policy and process for conducting security reviews of sub-processors. The VMware Security Team conducts an initial security review of any new sub-processor, and ongoing monitoring based on the identified security risk level.
   
   
4. List of sub-processors and notification of new sub-processors: VMware maintains a list of the sub-processors used by individual service offerings and in relation to the Support & Subscription Services. VMware provides prior notice of any new engagement of a sub-processor to customers that have subscribed to receive notification for a specific service. 

VMware has an internal process for tracking, analysing and assessing new laws, regulations, binding guidance and case law that may apply to VMware whether in its provision of its services or in the operation of its business.  The Privacy Team relies on outside counsel, external privacy research tools and law firm news alerts to understand when new laws and regulations are enacted. 

Once it is determined that a specific privacy law applies to VMware, such as was the case with laws in China, Japan, California, Colorado, Virginia, and Utah, for example, VMware tracks the legal requirements and implements a project plan to ensure compliance. As part of the implementation process, the VMware Privacy Team engages relevant internal stakeholders, and identifies the processes and controls that need updating to comply with the new legal requirements.  The VMware Privacy Team relies on its eco-system of Privacy Councils (driven by functional area such as Marketing, HR, Sales) within the company to assist with the implementation of new or changed laws in a timely and efficient manner.

The VMware Privacy Team also leverages its standard privacy training and other company trainings to ensure all its employees and contractors are properly trained on any new legal requirements that may impact their business function. For example, as part of VMware’s regulatory compliance with its Binding Corporate Rules for Processors, VMware implemented the necessary trainings via its annual mandatory Security and Awareness training, as well as updated its Business Code of Conduct to reflect the new requirements.

Security of its Cloud Services is of the utmost importance to VMware. For more information on how VMware secures its Cloud Services, see the Trust Center Security page. VMware maintains an information security management program that is aligned with the ISO 27001 standard, and reviewed at least annually to ensure appropriate controls, practices and procedures are in place.

In using VMware Cloud Services, you are responsible for configuring and implementing the necessary technical, organizational, and administrative controls to enable you to comply with any laws applicable to your use of the Cloud Service, which may depend on the types of data you choose to process using the service. Your responsibilities relating to the security of your Customer Content are set forth in the applicable agreement and include (a) controlling access you provide to your users, (b) configuring the Cloud Service appropriately, (c) ensuring the security of Customer Content while it is in transit to and from the Cloud Service, (d) using encryption technology to protect Customer Content as you deem necessary, and (e) backing up Customer Content.