Data Processing Addendum (Service Provider)

1. Preamble. This Data Processing Addendum (“DPA”), forms part of the Software as aService (SaaS) Terms of Service (the “TOS”) between LinkSquares, Inc. (“Company”) andthe entity that has engaged Company to provide the Service (as defined below) (“Client”)and shall be effective as of the date of the applicable Order Form (as defined in the TOS).The applicable Order Form(s) together with the TOS are referred to collectively herein as the“Client Agreement.” Terms used and not otherwise defined herein shall have the meaningsascribed to them in the Client Agreement. In this DPA, “Service” means the servicesprovided to Client by the Company in accordance with the terms of the Client Agreement.

2. Subject Matter, Nature, Purpose and Duration. Sections 2 through 6 of this DPA apply tothe processing of personal data relating to data subjects located in the European EconomicArea or the United Kingdom, or that is otherwise regulated by the GDPR, by the Companysolely on behalf of Client for the purpose of providing the Service (“EU Personal Data”). Asbetween the parties, (i) Client is a controller and the Company is a processor on behalf ofClient with regard to EU Personal Data or (ii) Client is a processor and the Company is asubprocessor on behalf of Client with regard to EU Personal Data. The subject matter andpurposes of EU Personal Data processing, type of EU Personal Data, categories of datasubjects, nature of the EU Personal Data processing, and Client’s data processinginstructions for the Company, are set forth on Exhibit A  to this DPA and as otherwise asprovided in reasonable written instructions by Client to the Company from time to time. ThisDPA shall remain in effect, and the duration of the processing under this DPA shall continue,as long as the Company carries out EU Personal Data processing operations on behalf ofClient or until the termination of the Client Agreement (and all EU Personal Data has beenreturned or deleted in accordance with Section 3(g)). The following terms have themeanings given in the General Data Protection Regulation (EU) 2016/679 (“GDPR”):“controller”, “personal data”, “processor”, “data subject” and “processing”.

3. Processing Covenants. In processing EU Personal Data hereunder, the Company shall:

a. process EU Personal Data only on documented instructions from Client, unless otherwise required to do so by applicable law, in which case the Company will inform Client of that legal requirement before processing, unless applicable law prohibits the Company from informing Client. For the avoidance of doubt, this DPA shall constitute Client’s documented instructions to the Company to process EU Personal Data in connection with the Company’s provision of the Service to Client;b. use commercially reasonable efforts intended to ensure that persons authorized to process EU Personal Data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality or are subject to ethical rules of responsibility that include confidentiality;c. taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement commercially reasonable technical and organizational measures intended to meet the security requirements described in Article 32 of the GDPR;

d. taking into account the nature of the processing, use commercially reasonable efforts to assist Client, at Client’s expense, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Client’s obligation to respond to requests for exercising the data subjects’ rights with respect to their EU Personal Data under the GDPR and any applicable national implementing legislation, regulations and secondary legislation relating to the processing of EU Personal Data (the “Data Protection Laws”);

e. taking into account the nature of processing and the information available to the Company, use commercially reasonable efforts to assist Client, at Client’s expense, in ensuring compliance with Client’s obligations described in Articles 32 through 36 of the GDPR;f. notify Client promptly if the Company becomes aware of a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, EU Personal Data (an “Incident”), provided that the provision of such notice by the Company shall not be construed as an acknowledgement of fault or liability with respect to any such Incident;

g. at the choice of Client, delete or return all EU Personal Data to Client within ninety (90) days after the end of the provision of the Service to Client and delete existing copies unless applicable law requires retention of EU Personal Data; and

h. make available upon Client’s reasonable request information reasonably necessary to demonstrate material compliance with the obligations laid down in this DPA and allow for and contribute to audits (each, an “Audit”), at Client’s expense, including inspections of processing facilities under the Company’s control, conducted by Client or another auditor chosen by Client (an “Auditor”), during normal business hours, no more frequently than once during any twelve (12) month period, and upon reasonable prior notice, provided that no Auditor shall be a competitor of the Company, and provided further that in no event shall Client have access to the information of any other client of the Company and the disclosures made pursuant to this Section 3(h) (“Audit Information”) shall be held in confidence as the Company’s  Confidential Information and subject to any confidentiality obligations in the Client Agreement, and provided further that no Audit shall be undertaken unless or until Client has requested, and the Company has provided, documentation pursuant to this Section 3(h) and Client reasonably determines that an Audit remains necessary to demonstrate material compliance with the obligations laid down in this DPA. Without limiting the generality of any provision in the Client Agreement, Client shall employ the same degree of care to safeguard Audit Information that it uses to protect its own confidential and proprietary information and in any event, not less than a reasonable degree of care under the
circumstances, and Client shall be liable for any improper disclosure or use of Audit Information by Client or its agents.

4. Subprocessors. Client hereby grants the Company general authorization to engage another processor to process EU Personal Data on behalf of the Company (each a “subprocessor”) to assist the Company in processing EU Personal Data as set out in this DPA. The Company shall enter into contractual arrangements with such subprocessors requiring the same level of data protection compliance and information security as that provided for herein. Client hereby consents to the processing of EU Personal Data by, and the disclosure and transfer of EU Personal Data to, the subprocessors listed on Exhibit B to this DPA. The Company shall inform Client of any intended changes concerning the addition or replacement of subprocessors at least ten (10) calendar days before the new subprocessor processes EU Personal Data. Client may object to such changes in writing within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection (an “Objection”). In the event of an Objection, the parties will discuss such concerns in good faith with the intention of achieving a resolution. If the parties are not able to achieve a resolution as described in the previous sentence, Client, as its sole and exclusive remedy, may terminate the Client Agreement for convenience, on the condition that Client provides written notice to the Company within five (5) calendar days of being informed of the engagement of the subprocessor. Client shall not be entitled to any refund of fees paid prior to the date of any termination pursuant to this Section 4.

5. Client Obligations. Client represents, warrants, and covenants that (i) it shall comply with its obligations as a controller under the GDPR in respect of its processing of EU Personal Data and any processing instructions it issues to the Company as referred to in Section 3(a); (ii) it has provided notice and obtained all consents and rights required by the Data ProtectionLaws to transfer the EU Personal Data outside the European Economic Area or United Kingdom and for the Company to process EU Personal Data pursuant to the Client Agreement and this DPA; and (iii) the processing of EU Personal Data by the Company upon the documented instructions of Client under Section 3(a) shall have a lawful basis of processing pursuant to Articles 6 and 9 of the GDPR. If Client is a processor, Client represents and warrants to the Company that Client’s instructions and actions with respect to EU Personal Data, including its appointment of the Company as another processor, have been duly authorized by the relevant controller. Client shall indemnify, defend and hold the Company harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Client’s violation of this Section 5. Notwithstanding anything to the contrary in the Client Agreement, Client’s indemnification obligations under this Section 5 shall not be subject to any limitations of liability set forth in the Client Agreement.

6. Data Transfer. Client hereby consents to the transfer of EU Personal Data to, and the processing of EU Personal Data in, the United States of America and/or in any other jurisdiction in which Company or its subprocessors have operations. The parties hereby enter into the Standard Contractual Clauses for Processors, as approved by the European Commission under Decision 2021/914/EU, attached hereto as Exhibit C (the “SCCs”) and made a part of this DPA in their entirety.

7. Other Personal Data. Notwithstanding anything to the contrary in the Client Agreement (including this DPA), Client acknowledges that the Company shall have a right to use and disclose data relating to the operation, support and/or use of the Service for its legitimate business purposes, such as product development and sales and marketing. To the extent any such data is considered personal data (as defined in, and regulated by the GDPR (as defined in Section 2)), the Company is the controller (as defined in the GDPR) of such data and accordingly shall process (as defined in the GDPR) such data in accordance with the Company’s privacy policy and the GDPR. From and after the CCPA Effective Date (as defined in Section 8), to the extent any such data is considered personal information (as defined in, and regulated by, the CCPA (as defined in Section 8)), the Company is the business (as defined in the CCPA) with respect to such data and accordingly shall process (as defined in the CCPA) such data in accordance with the Company’s privacy policy and the CCPA.

8. CCPA Provisions. This Section 8 shall apply from and after the CCPA Effective Date (as defined below) and shall not apply before such CCPA Effective Date. As between the parties, Company is a service provider to Client with respect to Consumer Information.

a. In this Section 8:

i. “CCPA” means the California Consumer Privacy Act of 2018.ii. “CCPA Effective Date” means January 1, 2020 or the date the CCPA becomes enforceable, whichever is later.

iii. “Consumer Information” means any personal information that is processed by Company solely on behalf of the Client.iv. “CCPAMedical Information” means any Consumer Information, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.

v. “CCPA Health Insurance Information” means a California resident’s insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the California resident, or any information in a California resident’s application and claims history, including any appeals records.

vi. “Sensitive Consumer Information” means any Consumer Information that constitutes either of the following: (A) California resident’s first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (I) social security number; (II) driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific California resident; (III) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an California resident’s financial account; (IV) Medical Information; (V) Health Insurance Information; (VI) unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific California resident (except that unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes) or (B) a username or email address in combination with a password or security question and answer that would permit access to an online account. Sensitive Consumer Information does not include publicly available Consumer Information that is lawfully made available to the general public from federal, state, or local government records.

vii. The following terms have the meanings given in the CCPA: “personal information”, “processing”, “service provider”, “sell”, “selling”, “sale” and “sold”.

b. From and after the CCPA Effective Date, except as otherwise required by applicable law, Company shall:

i. implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Sensitive Consumer Information intended to protect such Sensitive Consumer Information from unauthorized access, destruction, use, modification, or disclosure; ii. not retain, use or disclose Consumer Information for any purpose outside the scope of the business relationship of the parties and other than for the specific purpose of providing the Company Service (including retaining, using or disclosing the Consumer Information for a commercial purpose other than providing the Company Service) or as otherwise permitted by the CCPA as applicable to service providers;

iii. not collect or use Consumer Information except as reasonably necessary to provide the Company Service;

iv. not sell Consumer Information;

v. to the extent necessary, use commercially reasonable efforts to assist Client, at Client’s expense, in Client’s fulfilment of Client’s obligation to respond to California residents’ requests to exercise rights with respect to their Consumer Information under the CCPA; and

vi. use commercially reasonable efforts to assist Client, at Client’s expense, to the extent necessary to support Client’s compliance with Client’s obligations under the CCPA.

c. Company understands the restrictions provided in Section 8(b)(ii) and (iv) and will comply with them.

d. Client agrees that (i) it shall comply with its obligations under the CCPA in respect of its processing of Consumer Information and any processing instructions it issues to Company; and (ii) it has provided notice (including pursuant to Section 1798.135 of the CCPA) and obtained all consents and rights required by the CCPA for Company to process Consumer Information pursuant to the Client Agreement and this DPA. Client shall indemnify, defend and hold Company harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Client’s violation of this Section 8(d).

e. Nothing in this DPA shall prevent Company from engaging its own service providers in the processing of Consumer Information, provided that Company shall enter into contractual arrangements with such service providers requiring a substantially similar level of data protection compliance and information security as that provided in this Section 8 withrespect to Consumer Information.

9. PIPEDA Provisions. This Section 9 applies to the extent the Company has access to, collects, uses or discloses any Canadian Personal Information (as defined in Exhibit D to this DPA) while performing the Services under the Client Agreement that is subject to Canadian Privacy Laws (as defined in Exhibit D to this DPA), including The Personal Information Protection and Electronic Documents Act (“PIPEDA”). Attached to this DPA, as Exhibit D, is the PIPEDA Data Protection Schedule, which forms part of the DPA.

10. Integration. This DPA, including the SCCs, and the Client Agreement constitute the parties’ entire agreement and understanding with respect to the subject matter hereof. Except as set forth in Sections 5 and 8(d), the obligations contained in this DPA are (i) subject to any limitations of liability set forth in the Client Agreement and (ii) in addition to the otherobligations contained in the Client Agreement. In the event of a conflict between this DPA and any other terms in the Client Agreement, the terms of this DPA will govern. For the avoidance of doubt, to the extent that the Client Agreement excludes any types of information from confidentiality obligations, those exclusions shall not apply to information relating to any identified or identifiable natural person.

Exhibit A

Subject Matter, Nature, Purpose and Duration of the Processing

1 Type of EU Personal Data:

Representatives of Client: First name, last name, title, personal address, workplace address, billing address, email address, telephone number(s), payment card information, password, transaction data, internet protocol address, analytics/audit logging features (logins, file views, modifying data); browser type and version, time zone setting and location, username, browser plug-in types and versions, operating system and platform and other technology on the devices used to access LinkSquares’ website, website usage data, website user marketing and communication preferences; and

Individuals whose EU Personal Data is included in files uploaded to the Service by Client: Any EU Personal Data included in files uploaded to the Service by Client and/or its representatives, the extent of which is determined and controlled by Client in its sole discretion, including but not limited to: First name, last name, contact information, email address, date of hire, date of birth, government-issued identification number, bank account information and other financial information, compensation related information, human resources information, performance information, data concerning health, data concerning sexual orientation, ethnicity.

2 Categories of Data Subject:

Representatives of Client; Individuals whose EU Personal Data is included in files uploaded to Company’s platform by Client.

3 Subject Matter and Purposes EU Personal Data Processing:

Company’s provision of the Service to Client in accordance with the Client Agreement.

4 Nature of the Processing:

The EU Personal Data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise makingavailable, alignment or combination, blocking, erasure or destruction for the purpose of providing the Service by the Company to Client in accordance with the terms of the Client Agreement.

Exhibit B

Subprocessors

Google

Fullstory

Amazon Web Services

Salesforce

Slack

Drift

Exhibit C

Standard Contractual Clauses for EEA/Switzerland Data Transfers

STANDARD CONTRACTUAL CLAUSES – Controller to Processor

SECTION I

Clause 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) for the transfer of data to a third country.

(b)   The Parties:

(i)    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

(ii)   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.

Clause 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.

Clause 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, Clause 7;

(ii)   Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii)  Clause 9(a), (c), (d) and (e);

(iv)  Clause 12(a), (d) and (f);

(v)   Clause 13;

(vi)  Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

(b)   Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 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.

Clause 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.

Clause 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.

Clause 7 

Not used

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 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 organisational measures, to satisfy its obligations under these Clauses.

8.1   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.

8.2   Purpose limitationThe 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.

8.3   TransparencyOn 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 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.

8.4   AccuracyIf 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.

8.5   Duration of processing and erasure or return of dataProcessing 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).

8.6   Security of processing

(a)    The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised 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 organisational 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 authorised 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. 

8.7   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 offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8   Onward transfersThe 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 (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 benefitting 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 defence 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.

8.9   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.

Clause 9

Use of sub-processors

(a)    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 14 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 rightto 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. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the dataimporter 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 fulfil 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.

Clause 10Data subject rights

(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 authorised 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 organisational 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.

Clause 11

(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. 

Clause 13 Supervision

(a)  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.

(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.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

 (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 authorising 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, arenot 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 authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii)  any relevant contractual, technical or organisational 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 fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g., technical or organisational 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.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1     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.

15.2     Review of legality and data minimisation

(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.

SECTION IV – FINAL PROVISIONS

Clause 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.

Clause 17

Governing law

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 Ireland.

Clause 18

Choice of forum and jurisdiction

(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 Ireland.

(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.

APPENDIX

ANNEX I

A.   LIST OF PARTIES

Data exporter: 

Name: Client

Address: Address for Client as set out in the Client Agreement

Contact person’s name, position and contact details: Corporate contact for Client as set out in the Client Agreement

Activities relevant to the data transferred under these Clauses: Client is engaging Company to provide Services as specified in the Client Agreement and will provide data to Company pursuant to such Services.

Role (controller/processor): Data Controller

Data importer: 

Name: Company

Address: Address for Company as set out in the Client Agreement

Contact person’s name, position and contact details: Corporate contact for Company as set out in the Client Agreement

Activities relevant to the data transferred under these Clauses: Client is engaging Company to provide Services as specified in the Client Agreement. The processing activities are as set out in the Client Agreement.

Role (controller/processor): Data Processor

B.   DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

As set out in Exhibit A 

Categories of personal data transferred

As set out in Exhibit A

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 specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

As set out in Exhibit A

The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis).

Continuous basis

Nature of the processing

As set out in Exhibit A

Purpose(s) of the data transfer and further processing

As set out in Exhibit A

The period for which the personal data will be retained, or, if that is not possible, the criteria used todetermine that period

As set out in Exhibit A

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processingFor purposes of hosting and supporting Company’s platform and services.

C. COMPETENT SUPERVISORY AUTHORITYData Protection Commission, 21 Fitzwilliam Square, D02 RD28 Dublin 2

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

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

Such technical and organisational measures are set out in Exhibit C-1. For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter Such technical and organisational measures are set out in Exhibit C-1.

Exhibit C1 – Data Security Exhibit

1. Program.  Company will implement and maintain a comprehensive written information. security program (“Information Security Program”), which contains appropriate administrative, technical and organizational safeguards that comply with this Exhibit C1 and that ensures the security, integrity, availability, resilience and confidentiality ofClient’s Confidential Information and that meet or exceed generally accepted industry standards. 

2. Access Controls.  Company will: (a) abide by the “principle of least privilege,” pursuant to which Company will permit access to Client’s Confidential Information by its personnel solely on a need-to-know basis; (b) promptly terminate its personnel’s access to Client’s Confidential Information when such access is no longer required forperformance under the Client Agreement; (c) log the details of any access to Client’s Confidential Information, and retain such records for no less than 90 days; and (d) be responsible for any processing of Client’s Confidential Information by its personnel.

3. Account Management.  Company will use reasonable measures to manage the creation, use, and deletion of all account credentials used to access the Company Systems, including by implementing: (a) a segregated account with unique credentials for each user; (b) strict management of administrative accounts; (c) password best practices, including the use of strong passwords and secure password storage; and (d) periodic audits of accounts and credentials.  “Company Systems” means the facilities, systems, equipment, hardware, and software used in connection with Company’s Processing of Client’s Confidential Information.

 4. Vulnerability Management.  Company will: (a) use automated vulnerability scanning tools to scan the Company Systems; (b) log vulnerability scan reports; (c) conduct periodic reviews of vulnerability scan reports over time; (d) use patch management and software update tools for the Company Systems; (e) prioritize and remediate vulnerabilities by severity; and (f) use compensating controls if no patch or remediation is immediately available.  

5. Incident Response.  Company will notify Client of any accidental or unlawful destruction, loss, or alteration of Client Confidential Information, or any unauthorized access to, or use or disclosure of, Client Confidential Information (“Security Incident”) without undue delay (and in any event within 24 hours) after becoming aware of any actual or reasonably suspected Security Incident.  In any such notice, Company will include: (a) a description of the Security Incident, including the number and categories of any individuals affected, (b) categories and number of records concerned, (c) types of information affected, (d) date and time of the Security Incident, (e) a summary of the circumstances that caused the Security Incident and any ongoing risks that the Security Incident poses, (f) a description of the measures proposed or taken by Company to address the Security Incident, and (e) any other information reasonably requested by Client relating to the Security Incident.  If and solely to the extent it is not possible to provide the above information at the same time, the information may be provided in phases without undue delay.  Company will provide reasonable assistance to Client toinvestigate, remediate or take any other action Client deems reasonably necessary regarding the Security Incident, including in connection with any dispute, inquiry,investigation or claim concerning the Security Incident.

6. Security Segmentation.  Company will use reasonable measures to monitor, detect and restrict the flow of information on a multilayered basis within the Company Systems using tools such as firewalls, proxies, and network-based intrusion detection systems.  

7. Data Loss Prevention.  Company will use reasonable data loss prevention measures to identify, monitor and protect Client’s Confidential Information in use, in transit and at rest.  Such data loss prevention processes and tools will include: (a) automated tools to identify attempts of data exfiltration; (b) the prohibition of, or secure and managed use of,portable devices; (c) use of certificate-based security; and (d) secure key management policies and procedures. 

8. Encryption. Company will encrypt, using industry standard encryption tools, Client’s Confidential Information that Company: (i) transmits or sends wirelessly or across public networks or within the Company Systems; (ii) stores on laptops or storage media, and (iii) stores on portable devices or within the Company System. Company will safeguardthe security and confidentiality of all encryption keys associated with encrypted information. 

9. Pseudonymization. Company will, where possible, applicable and consistent with the Services, use industry standard and reasonable pseudonymization techniques to protect Client’s Confidential Information.  

10. Secure Software Development.  Company represents and warrants that any software used in connection with the processing of Client’s Confidential Information is or has been developed using secure software development practices, including: (a) segregating development and production environments; (b) filtering out potentially malicious character sequences in user inputs; (c) using secure communication techniques, including encryption; (d) using sound memory management practices; (e) using web application firewalls to address common web application attacks such as cross-site scripting, SQL injection and command injection; (f) implementing the OWASP Top Ten recommendations, as applicable; (g) patching of software; (h) testing object code and source code for common coding errors and vulnerabilities using code analysis tools; and (i) testing of web applications for vulnerabilities using web application scanners.