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This Data Processing Agreement (“DPA”) forms part of the Gorgias’ Master Subscription Agreement (the “Agreement”) between the applicable Gorgias customer which is a party to such Agreement (“Customer”), and Gorgias Inc which is also a party to such Agreement (“Gorgias”). Customer and Gorgias are each referred to as a “Party” and collectively as the “Parties”.
Except as modified below, the terms of the Agreement shall remain in full force and effect. Notwithstanding anything to the contrary in the Agreement, if there is a conflict between this DPA and the Agreement, this DPA will control. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
The DPA has been automatically pre-signed and executed by the Parties upon the Customer’s electronic signature of the Agreement.
Alternatively, to the extent that the Customer has already executed the Agreement, the DPA will become legally binding on the Parties upon the Customer’s completion of the information in the signature box and receipt of the unmodified, completed and countersigned DPA by Gorgias [through any e-signature tool]
For the avoidance of doubt, signature of this DPA shall be deemed to constitute signature and acceptance of the Standard Contractual Clauses incorporated herein, including their annexes.
1. Definitions.
The terms used in this DPA shall have the meanings set forth in this DPA or as defined by Applicable Privacy Law, whichever is broader. Capitalized terms not otherwise defined herein or defined by Applicable Privacy Law shall have the meaning given to them in the Agreement. The following terms have the meanings set forth below:
1.1. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with either Gorgias or Customer, respectively.
1.2. “Applicable Privacy Law” shall mean applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which Gorgias is subject, including, but not limited to, (a) the California Consumer Privacy Act of 2018 (“CCPA”), (b) the EU General Data Protection Regulation 2016/679 (“GDPR”) including the applicable implementing legislation of each Member State (“EU GDPR”), (c) the UK Data Protection Act 2018 and the UK General Data Protection Regulation as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended (including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR” and together with the EU GDPR, the “GDPR”), (d) the Swiss Federal Act on Data Protection of 19 June 1992, (e) any other applicable law with respect to any Personal Data in respect of which the Gorgias is subject to, and (f) any other data protection law and any guidance or statutory codes of practice issued by any relevant Privacy Authority, in each case, as amended from time to time and any successor legislation to the same.
1.3. “Data Subject” shall mean an identified or identifiable natural person.
1.4. “Personal Data” shall mean (i) personal data, personal information, personally identifiable information, or similar term as defined by Applicable Privacy Law or (ii) if not defined by Applicable Privacy Law, any information that relates to a Data Subject; in each case, to the extent Processed by Gorgias, on behalf of Customer, in connection with Gorgias’s performance of the Services.
1.5. “Gorgias Entity” shall mean Gorgias Inc., and/or any Gorgias Affiliate.
1.6. “Privacy Authority” shall mean any competent supervisory authority, attorney general, or other regulator with responsibility for privacy or data protection matters in the jurisdiction of Gorgias.
1.7. “Process”, “Processing” or “Processed” shall mean any operation or set of operations, as defined in the Applicable Privacy Law, performed upon Personal Data whether or not by automatic means, including collecting, recording, organizing, storing, adapting or altering, retrieving, consulting, using, disclosing, making available, aligning, combining, blocking, erasing and destroying Personal Data.
1.8. “Security Breach” shall mean an actual breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data when transmitted, stored or otherwise processed by Gorgias.
1.9. “Services” shall mean the services as described in the Agreement or any related order form or statement of work.
1.10 “Standard Contractual Clauses” means (a) with respect to transfers of Personal Data which are subject to the EU GDPR from the European Economic Area (EEA) to countries outside the EEA that do not provide adequate protection of Personal Data, the Controller-to-Processor standard contractual clauses, as set out in the European Commission’s Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to GDPR, as may be amended or replaced by the European Commission from time to time as set out in Exhibit D of this DPA (“EU SCCs”), (b) with respect to restricted transfers (as such term is defined under UK GDPR) subject to the UK GDPR, the UK international data transfer addendum to the European Commission’s standard contractual clauses for international data transfers issued by the Information Commissioner on March 21, 2022, as set out in Exhibit E of this DPA (“UK SCCs”), and (c) with respect to transfers of Personal Data which are subject to the Swiss Federal Act on Data Protection of 19 June 1992, the EU SCCs as approved by the Swiss Data Protection and Information Commissioner, including the necessary adaptations to ensure compliance with Swiss data protection law, as set out in Exhibit F of this DPA (“Swiss SCCs”).
1.11. “Subprocessor” shall mean any subcontractor (including any third party and/or Gorgias Affiliate) engaged by Gorgias to Process Personal Data on behalf of Customer.
1.12. “Supervisory Authority” shall mean: (a) in the context of the UK GDPR the UK Information Commissioner’s Office; (b) in the context of the EU GDPR, shall have the meaning given to that term in Article 4(21) of the EU GDPR; and (c) in the context of the Swiss Federal Act on Data Protection of 19 June 1992, the Swiss Data Protection and Information Commissioner.
2. Processing Requirements.
2.1 Gorgias shall comply with Applicable Privacy Law in the Processing of Personal Data and only Process Personal Data for the purposes of providing the Services and in accordance with Customer’s instructions, and as may subsequently be agreed between the Parties in writing. Gorgias shall promptly inform Customer if (a) in Gorgias’s opinion, an instruction from Customer violates Applicable Privacy Law; or (b) Gorgias is required by applicable law to otherwise Process Personal Data, unless Gorgias is prohibited by that law from notifying Customer under applicable law.
2.2. Gorgias shall implement and maintain reasonable and appropriate technical measures that will ensure that Customer’s reasonable and lawful instructions can be complied with, including the following:
(a) updating, amending, correcting, or providing access to the Personal Data of any Data Subject upon written request of Customer from time to time
(b) canceling, deleting, or blocking access to any Personal Data upon receipt of written instructions from Customer;
(c) otherwise facilitating Customer’s responses to Data Subject requests as required under Applicable Privacy Law; and
(d) Gorgias shall promptly redirect any request from a Data Subject to exercise any of its Data Subject rights to Customer, and shall not respond directly to the Data Subject unless instructed so by Customer in writing.
2.3. Gorgias acknowledges that (a) Customer discloses Personal Data to Customer solely for the business purpose of Customer, and (b) Gorgias has not and will not receive any monetary or other valuable consideration in exchange for their receipt of the Personal Data, and that any consideration paid by Customer to Gorgias under the Agreement relates only to Gorgias’s provision of the Services. Gorgias shall not collect, retain, use, disclose, or otherwise Process the Personal Data (i) for any purpose other than for the specific purpose of providing the Services to Customer, or (ii) outside of the direct business relationship between Gorgias and Customer. In addition, Gorgias shall not “sell,” as defined under Applicable Privacy Law (including, without limitation, CCPA), any Personal Data or otherwise disclose any Personal Data to a third party for cross-context behavioral or targeted advertising purposes.
2.4. Gorgias shall provide to Customer such co-operation, assistance and information as Customer may reasonably request to enable it to comply with its obligations under Applicable Privacy Law and co-operate and comply with the directions or decisions of a relevant Privacy Authority, in each case (a) solely to the extent applicable to Customer’s provision of the Services, and (b) within such reasonable time as would enable Customer to meet any time limit imposed by the Privacy Authority.
3. Security of Personal Data.
3.1. Gorgias shall maintain, during the term of the Agreement, appropriate technical and organizational security measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorized disclosure or access, as set forth in Exhibit B.
3.2. Gorgias shall ensure the reliability of any employees who Process Personal Data.
3.3. Gorgias will ensure that any employees entrusted with the Processing of Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4. Customer Obligations.
(a) Customer’s Security Responsibilities. Customer agrees that, without limitation of Gorgias’s obligations under Section 3 (Security of Personal Data) or the Parties’ obligations under the Agreement, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that Gorgias uses to provide the Services; and (d) backing up Personal Data.
(b) Customer’s Security Assessment. Customer agrees that the Services and Gorgias’s commitments under this DPA are adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Data Protection Laws, and provide a level of security appropriate to the risk in respect of the Personal Data.
5. Subprocessors.
5.1. Customer generally authorizes Gorgias to engage Subprocessors in connection with the Processing of Personal Data for the performance of the Agreement. Gorgias will maintain a list of its Subprocessors at the following URL: https://www.gorgias.com/legal/list-of-data-subprocessors, and will add the names of new and replacement Subprocessors as applicable from time to time.
5.2. Gorgias will inform Customer of its intention to engage any new or replacement Subprocessors in writing at least fifteen (15) days in advance of the date of the intended commencement of the engagement. Customer may object to such intended engagement by giving written notice at the latest ten (10) days in advance of the date of the intended commencement of the engagement. If Customer objects to Gorgias’ appointment of a Subprocessor on reasonable grounds relating to the protection of Personal Data, then Gorgias will use reasonable efforts to make available to Customer a changes in the Services or recommend a commercial reasonable change to Customer’s configuration of use of the Services to avoid using the objected to Subprocessor. If Gorgias is unable to make available the change within a reasonable period of time, Customer may terminate the applicable [Order Form] with respect only to those Services which cannot be provided without the use of the objected-to Subprocessor by providing written notice to Gorgias. Gorgias will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
5.3 Gorgias will contractually impose substantially similar data protection obligations on its Subprocessors as those imposed on Gorgias under this DPA. Gorgias shall remain liable for any Processing of Personal Data by each such Subprocessor as if it had undertaken such Processing itself.
6. Breach Notification.
6.1. Notification to Customer. Unless otherwise prohibited by applicable law, Gorgias shall notify Customer without undue delay, and in any event within 72 hours after Gorgias becomes aware of a Security Breach. Such notification shall include, to the extent such information is available (a) a detailed description of the Security Breach, (b) the type of data that was the subject of the Security Breach and (c) the identity of each affected person (or, where not possible, the approximate number of Data Subjects and of Personal Data records concerned). In addition, Gorgias shall communicate to Customer (i) the name and contact details of Gorgias’s data protection officer or other point of contact where more information can be obtained, (ii) a description of the likely consequences of the Security Breach, (iii) a description of the measures taken or proposed to be taken by Gorgias to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.
6.2. Investigation. Gorgias shall take prompt action to investigate the Security Breach and shall use industry standard, commercially reasonable efforts to mitigate the effects of any such Security Breach in accordance with its obligations hereunder.
7. Privacy Impact Assessment.
Gorgias shall, promptly upon receipt of written request by Customer and where required by Applicable Privacy Law (a) make available to Customer such information as is reasonably necessary to demonstrate Customer’s compliance with Applicable Privacy Law to the extent applicable to the Services, and (b) reasonably assist Customer in carrying out any privacy impact assessment and any required prior consultations with Privacy Authorities, taking into account the nature of the Processing and the information available to Gorgias. Gorgias shall reasonably cooperate with Customer to implement such mitigation actions as are reasonably required to address privacy risks identified in any such privacy impact assessment. Unless such request follows a Security Breach or is otherwise required by Applicable Privacy Law, Customer shall not make any such request more than once in any 12-month period.
8. Audit Rights.
Customer may audit Gorgias’s compliance with its obligations under this DPA no more than once per year. Gorgias will reasonably contribute to such audits by providing Customer or Customer’s Supervisory Authority with the information and assistance that Gorgias considers appropriate in the circumstances and reasonably necessary to conduct the audit. To request an audit, Customer must submit a proposed audit plan to Gorgias at least two weeks in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Gorgias will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Gorgias security, privacy, employment or other relevant policies). Gorgias will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 8 shall require Gorgias to breach any duties of confidentiality. If the controls or measures to be assessed in the requested audit are addressed in an SOC 2 Type 2, or similar audit report performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Gorgias has confirmed there have been no known material changes in the controls audited since the date of such report, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures. The audit must be conducted during regular business hours, subject to the agreed final audit plan and Gorgias’s safety, security or other relevant policies, and may not unreasonably interfere with Gorgias business activities. Any audits are at Customer’s sole expense. Customer shall reimburse Gorgias for any time expended by Gorgias and any third parties in connection with any audits or inspections under this Section 8 at Gorgias’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
9. Deletion of Personal Data.
Gorgias shall, promptly and in any event within 90 days of expiration or termination of the Agreement, or following receipt of written notice from, (a) return a complete copy of all Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to Gorgias; and (b) delete and procure the deletion of all other copies of Personal Data Processed by Gorgias. This obligation is in addition to Gorgias’ obligations concerning the destruction or return of Customer’s Confidential Information as provided in the Agreement.
10. Third Party Disclosure Requests.
10.1. Unless prohibited by applicable law, Gorgias shall promptly notify Customer of any inquiry, communication, request or complaint, to the extent relating to Gorgias’s Processing of Personal Data on behalf of Customer, from:
(a) any governmental, regulatory or supervisory authority, including Privacy Authorities or the U.S. Federal Trade Commission; and/or
(b) any Data Subject, and shall, taking into account the nature of the Processing, provide reasonable assistance to enable Customer to respond to such inquiries, communications, requests or complaints and to meet applicable statutory or regulatory deadlines. Gorgias shall not disclose Personal Data to any of the persons or entities in (a) or (b) above unless it is legally required to do so and has otherwise complied with the obligations in this Section 9.1 and Section 9.2.
10.2. In the event that Gorgias is required by law, court order, warrant, or other legal judicial process (“Legal Request”) to disclose any Personal Data to any person or entity other than Customer, including any national security authority or other government body, Gorgias shall attempt to redirect the government request to Customer. If Gorgias is unable to redirect the request, Gorgias shall, unless prohibited by applicable law, notify Customer promptly and shall provide all reasonable assistance to Customer to enable Customer to respond or object to, or challenge, any such Legal Requests and to meet applicable statutory or regulatory deadlines. If Gorgias is prohibited by applicable law from providing notice to Customer of a Legal Request, Gorgias shall use commercially reasonable efforts to object to, or challenge, any such Legal Request to avoid or minimize the disclosure of Personal Data. Gorgias shall not disclose Personal Data pursuant to a Legal Request unless it is required to do so by applicable law and has otherwise complied with the obligations in this Section 10.2.
11. Transfers of Personal Data Outside of the European Economic Area, the United Kingdom, and Switzerland.
Where Personal Data originating in the European Economic Area is Processed by Gorgias outside the European Economic Area, in a territory that has not been designated by the European Commission as ensuring an adequate level of protection pursuant to Applicable Privacy Law, Customer and Gorgias agree that the transfer shall be undertaken pursuant to Standard Contractual Clauses which form integral part of this DPA. For transfers from Switzerland only, the term “personal data” as used in the Standard Contractual Clauses, shall include, as applicable, personality profiles and the personal data of legal persons. Gorgias shall provide a copy of the signed version of the Standard Contractual Clauses to Customer upon request.
12. Claims.
Any claims brought under, or in connection with, this DPA, shall be subject to the exclusions and limitations of liability set forth in the Agreement.
IN WITNESS WHEREOF, this DPA is entered into and becomes a binding part of the Agreement with effect from the date of signature of the last party to sign hereto.
EXHIBIT A
A. LIST OF PARTIES
Data exporter(s):
Name: The Customer, as defined in the Master Service Agreement
Address: The Customer's address, as set out in the Order Form
Contact person’s name, position and contact details: The Customer's contact details, as set out in the Order Form and/or as set out in the Customer’s Gorgias Account Role (controller/processor): Controller
Activities relevant to the data transferred under these Clauses: Execute customer support service through Gorgias platform
Role (Controller or Processor): Controller
Data importer(s):
Name: Gorgias Inc.
Address: 180 Sansome St, Suite 1800, San Francisco, CA 94014
Contact person’s name, position and contact details: security@gorgias.com
legal@gorgias.com
Activities relevant to the data transferred under these Clauses: Delivering the Service, and to analyze and enhance the operation of the Service.
Role (Controller or Processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred Users of Customer’s websites and applications
Purchasers of Customer’s good and services
Individuals submitting user generated content to Customer’s, or its syndication partners’ websites and applications
End users or customers of Customer
Agents of Customer to support the use of the Services
Categories of personal data transferred Data exporter may submit or make available Personal Data to the Services and which may include, but is not limited to the following categories of Personal Data:
First and last name or initial (or nickname / screenname), contact information (email address and/or unique identifier)
IP address and/or other device ID
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures Gorgias does not intentionally Process any special category data in the provision of the Services except cardholder data (from End-User).
The frequency of the transfer (whether the data is transferred on a one-off or continuous basis) On a continuous basis during the term of the Agreement.
Nature of the processing As described in the Agreement.
Purpose(s) of the data transfer and further processing As described in the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period Duration of performance of the Services.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing As described in the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority shall be the supervisory authority that has jurisdiction over the Data Exporter/Controller.
EXHIBIT B: TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The data importer has implemented and maintains comprehensive technical and organizational safeguards, which contain those safeguards described below:
Organizational management and dedicated staff responsible for the development, implementation and maintenance of the Gorgias’s information security program.
Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Gorgias’s organization, monitoring and maintaining compliance with the Gorgias’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management. Gorgias is SOC2 Type 2 compliance since 2021.
Data security controls which include, at a minimum, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available industry standard encryption technologies for Personal Data that is transmitted over public networks (i.e. the Internet) or when transmitted wirelessly or at rest or stored on portable media (i.e. laptop computers).
Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that the Gorgias’s passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on the Gorgias’s computer systems; (iii) must have defined complexity; and (iv) newly issued passwords must be changed after first use.
System audit or event logging and related monitoring procedures to proactively record user access and system activity.
Physical and environmental security of data centers, server room facilities and other areas containing Personal Data designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of the Gorgias’s facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from the Gorgias’s possession.
Change management procedures and tracking mechanisms designed to test, approve and monitor all material changes to the Gorgias’s technology and information assets.
Incident management procedures designed to allow Gorgias to investigate, respond to, mitigate and notify of events related to the Gorgias’s technology and information assets.
Network security controls designed to protect systems from intrusion and limit the scope of any successful attack.
Vulnerability assessment, patch management and threat protection technologies, and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
Disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergencies or disasters.
EXHIBIT C: LIST OF SUB-PROCESSORS
The controller has authorized the use of the following sub-processors:
1. Infrastructure Sub-Processors
Third Party Sub-Processor Purpose Location
Cloudflare Third-party content delivery network United States
Google Cloud Platform (GCP) Cloud Service Provider United States, Germany, Belgium and Australia
Segment Data Infrastructure United States
Confluent Full-scale data streaming platform United States, Germany, Belgium and Australia (co-located with GCP)
2. Feature Specific Sub-Processors
Third Party Sub-Processor Purpose Location
Appcues Onboarding tours, announcements and surveys United States
Amplitude Product analytics United States
Customer.io Email marketing, customer comms (drip campaigns, onboarding emails, etc…) United States
Circle Community hosting platform United States
Datadog, Inc Querying and performing analytics on Gorgias and infrastructure logs. United States
Fivetran Data ingestion for analytics purposes. United States
Google Workspace & Analytics Email, file storage, video conferencing United States
Hubspot Third-party CRM and Marketing solution. North America
OpenAI AI research and deployment company United States
Pandadoc E-Signature legal United States
Sentry Application error logging. United States (Iowa)
Stripe Customer payments United States
Smooch Chat data, including chat messages, and email address (if provided) United States
Twilio, Inc. Voice functionality - SMS United States (Eastern)
3. Gorgias Affiliate Sub-Processors
Third Party Sub-Processor Purpose Location
Gorgias SAS Service & Support France
Gorgias Helpdesk Inc Service & Support Canada
Gorgias Inc Service & Support Australia
Gorgias d.o.o Service & Support Serbia
EXHIBIT D: EU SCCs (MODULE 2 – CONTROLLER TO PROCESSOR)
I
1. Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
2. Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
3. Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6;
(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(vii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
4. Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
5. Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
6. Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
7. Docking Clause
Intentionally Omitted
II - OBLIGATIONS OF THE PARTIES
8. Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.
MODULE TWO: Transfer controller to processor
1. Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
2. Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
3. Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
4. Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
5. Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
6. Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
7. Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8. Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
9. Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
9. Use of sub-processors
MODULE TWO: Transfer controller to processor
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least fifteen (15) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
10. Data subject rights
MODULE TWO: Transfer controller to processor
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
11. Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
12. Liability
MODULE TWO: Transfer controller to processor
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
13. Supervision
MODULE TWO: Transfer controller to processor
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
II – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
14. Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
(iii) any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
15. Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
1. Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
2. Review of legality and data minimization
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
II – FINAL PROVISIONS
16. Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
17. Governing law
MODULE TWO: Transfer controller to processor
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of France
18. Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of France
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
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(1) Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
(4) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
(8) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
(11) The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.
(12) As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.
APPENDIX
EXPLANATORY NOTE:
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
ANNEX I
A. LIST OF PARTIES
Data exporter(s): Please refer to Exhibit A (part A) of the DPA.
Data importer(s): Please refer to Exhibit A (part A) of the DPA.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred.
Please refer to Exhibit A (part B) of the DPA.
Categories of personal data transferred.
Please refer to Exhibit A (part B) of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
Please refer to Exhibit A (part B) of the DPA.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Please refer to Exhibit A (part B) of the DPA.
Nature of the processing.
Please refer to Exhibit A (part B) of the DPA.
Purpose(s) of the data transfer and further processing.
Please refer to Exhibit A (part B) of the DPA.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
Please refer to Exhibit A (part B) of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing.
Please refer to Exhibit A (part B) of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13.
Please refer to Exhibit A (part C) of the DPA.
ANNEX II : TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
EXPLANATORY NOTE:
The technical and organizational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
Please refer to Exhibit B of the DPA.
EXHIBIT E – UK SCCs
Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
VERSION B1.0, in force 21 March 2022
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
Start date
The Parties Exporter (who sends the Restricted Transfer) Importer (who receives the Restricted Transfer)
Parties’ details Full legal name: Please refer to Exhibit A (part A) of the Addendum.
Trading name (if different):
Main address (if a company registered address): Please refer to Exhibit A (part A) of the Addendum.
Official registration number (if any) (company number or similar identifier):
Full legal name: Please refer to Exhibit A (part A) of the Addendum. Trading name (if different):
Main address (if a company registered address): Please refer to Exhibit A (part A) of the Addendum.
Official registration number (if any) (company number or similar identifier):
Key Contact Please refer to Exhibit A (part A) of the Addendum. Please refer to Exhibit A (part A) of the Addendum.
Signature (if required for the purposes of Section 2)
Table 2: Selected SCCs, Modules and Selected Clauses
Addendum EU SCCs ☒ The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information:
Date: Please refer to the DPA.
Reference (if any): The EU SCCs set forth in Exhibit D of the Addendum.
Other identifier (if any):
Or
☐ the Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum:
Module Module in operation Clause 7 (Docking Clause) Clause 11 (Option) Clause 9a (Prior Authorisation or General Authorisation) Clause 9a (Time period) Is personal data received from the Importer combined with personal data collected by the Exporter?
1 x x x
2 x
3 x
4 x x
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Annex 1A: List of Parties: Please refer to Exhibit A (part A) of the Addendum.
Annex 1B: Description of Transfer: Please refer to Exhibit A (part B) of the Addendum.
Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: Please refer to Exhibit B of the Addendum.
Annex III: List of Sub processors (Modules 2 and 3 only): Please refer to Exhibit C of the Addendum.
Table 4: Ending this Addendum when the Approved Addendum Changes
Ending this Addendum when the Approved Addendum changes Which Parties may end this Addendum as set out in Section 19: ☒ Importer ☒ Exporter ☐ neither Party
Part 2: Mandatory Clauses
Entering into this Addendum
1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
Addendum This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCs The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.
Appendix Information As set out in Table 3.
Appropriate Safeguards The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved Addendum The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.
Approved EU SCCs The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICO The Information Commissioner.
Restricted Transfer A transfer which is covered by Chapter V of the UK GDPR.
UK The United Kingdom of Great Britain and Northern Ireland.
UK Data Protection Laws All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPR As defined in section 3 of the Data Protection Act 2018.
4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.
5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
Hierarchy
9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
Incorporation of and changes to the EU SCCs
12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
(a) together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
(b) Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
(c) this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
15. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
(a) References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
(b) In Clause 2, delete the words:
“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
(c) Clause 6 (Description of the transfer(s)) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
(d) Clause 8.7(i) of Module 1 is replaced with:
“it is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
(e) Clause 8.8(i) of Modules 2 and 3 is replaced with:
“the onward transfer is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
(f) References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
(g) References to Regulation (EU) 2018/1725 are removed;
(h) References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
(i) The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
(j) Clause 13(a) and Part C of Annex I are not used;
(k) The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
(l) In Clause 16(e), subsection (i) is replaced with:
“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
(m) Clause 17 is replaced with:
“These Clauses are governed by the laws of England and Wales.”;
(n) Clause 18 is replaced with:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
(o) The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to this Addendum
16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved Addendum which:
a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
b. reflects changes to UK Data Protection Laws;
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
a. its direct costs of performing its obligations under the Addendum; and/or
b. its risk under the Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.
Alternative Part 2 Mandatory Clauses:
Mandatory Clauses Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.
EXHIBIT F – SWISS SCCs : Adaptations for Compliance With Swiss Law
In order for the EU SCCs to comply with Swiss law and thus be suitable for ensuring an adequate level of protection for data transfers from Switzerland to a third country in accordance with the Swiss Federal Act on Data Protection (CH-DPA), the EU SCCs shall be amended with the following prevailing provisions.
The parties adopt the standard of the Regulation (EU) 2016/679 for all data transfers.
(a) Competent supervisory authority (Clause 13 / Annex I.C):
(1) To the extent the transfer of personal data is governed by the CH-DPA, the Swiss Federal Data Protection and Information Commissioner (FDPIC) shall act as the competent supervisory authority.
(2) To the extent the transfer of personal data is governed by the Regulation (EU) 2016/679, the supervisory authority determined in Annex I.C to the EU SCCs shall act as the competent supervisory authority.
(b) Governing law (Clause 17): The EU SCCs shall be governed by the law determined in Clause 17 of the EU SCCs.
(c) Choice of forum and jurisdiction (Clause 18.a/b): Any dispute arising from the EU SCCs shall be resolved by the courts determined in Clause 18.b of the EU SCCs.
(d) Data subject jurisdiction (Clause 18.c): The term “Member State” shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of pursuing their rights at their place of habitual residence (Switzerland) in accordance with Clause 18.c of the EU SCCs. Accordingly, data subjects with their place of habitual residence in Switzerland may also bring legal proceedings before the competent courts in Switzerland.
(e) Scope of “personal data” (Clause 1.a/c / Annex I.B): In addition to personal data pertaining to natural persons, the EU SCCs shall be applicable to and protect personal data pertaining to legal entities as well, if and to the extent such personal data pertaining to legal entities is within the scope of the CH-DPA.
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