Data Processing Addendum (Service Provider)
1. Preamble.
This Data Processing Addendum (“DPA”), forms part of the Software as a Service (SaaS) Terms of Service (the “TOS”) between LinkSquares, Inc. (“Company”) and Client. Capitalized terms used and not otherwise defined in this DPA shall have the meanings ascribed to them in the TOS. In the event of conflict between the terms in this DPA and the TOS, the provisions of this DPA shall take precedence to the extent of such conflict as it relates to the subject matter of this DPA.
2. Subject Matter, Nature, Purpose and Duration.
Sections 2 through 6 of this DPA apply to the processing of personal data relating to data subjects located in the European Economic Area or the United Kingdom, or that is otherwise regulated by the General Data Protection Regulation (EU) 2016/679, or the General Data Protection Regulation (EU) 2016/679 as it forms part of UK law under the UK European Union (Withdrawal) Act 2018 (the “UK GDPR” and collectively the “GDPR”), by the Company solely on behalf of Client for the purpose of providing the Services (“EU Personal Data”). As between the parties, (i) Client is a controller and the Company is a processor on behalf of Client with regard to EU Personal Data or (ii) Client is a processor for a third-party controller and in those instances, the Company may be considered a subprocessor on behalf of Client with regard to EU Personal Data. The subject matter and purposes of EU Personal Data processing, type of EU Personal Data, categories of data subjects, nature of the EU Personal Data processing are set forth on Exhibit A to this DPA. This DPA shall remain in effect for the term of the TOS. The following terms have the meanings given in the General Data Protection Regulation (EU) 2016/679: “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 the 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 and the TOS shall constitute Client’s documented instructions to the Company in connection with the Company’s provision of the Services 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 as set forth in Annex II of the Appendix in the SCCs (as defined below);
d. taking into account the nature of the processing, use commercially reasonable efforts to assist Client to respond to requests for exercising the data subjects’ rights with respect to their EU Personal Data under the GDPR; and
e. taking into account the nature of processing and the information available to the Company, use commercially reasonable efforts to assist Client in ensuring compliance with Client’s obligations described in Articles 32 through 36 of the GDPR;
f. notify Client promptly and without undue delay 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 to the extent required under applicable law (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. upon Client’s request, delete or return all EU Personal Data in accordance with the procedures set out in the TOS, except where applicable law requires Company to retain some or all EU Personal Data; and
h. undergo independent third-party audits on a periodic basis to assess its security measures. Subject to the confidentiality obligations in the TOS, Company will, upon Client’s written request, make the SOC2 Type II Audit report available to Client so that Client can verify Company’s material compliance with this DPA. In addition, upon Client’s reasonable request and provided that the information in the SOC 2 Type II Audit report is, in Client’s reasonable determination, insufficient to demonstrate Company’s material compliance with this DPA, Company will, at Client’s expense and provided Client shall not exercise this right more than once per calendar year unless required under GDPR, provide additional information to Client as reasonably necessary to demonstrate Company’s material compliance with its obligations in this DPA. Pursuant to such request, Client may not audit facilities, networks, systems, devices, or storage media of Company or its personnel. Any records, data, or information provided to Client pursuant to this Section (collectively, the “Audit Information”) shall be held in confidence as Company’s Confidential Information and subject to any confidentiality obligations in the TOS. Client may use the Audit Information and any audit report solely for the purposes of assessing Company’s material compliance with this DPA as required under GDPR. Client shall be liable for any improper disclosure or use of Audit Information by Client, or its respective agents.
4. Subprocessors.
Client hereby grants Company with general authorization to engage subprocessors to process EU Personal Data on Client’s behalf to assist the Company in processing EU Personal Data as set out in this DPA. Client hereby consents to engagement of the subprocessors in the Subprocessor List (as defined in Exhibit B). Company will update the Subprocessor List in the event of any addition of a subprocessor at least 10 calendar days before the new subprocessor processes EU Personal Data. The Subprocessor List contains a mechanism to subscribe to notifications of any updates to it. Client may object to Company’s use of a new subprocessor by notifying Company in writing within 5 calendar days of Company’s update to the Subcontractor List adding such subprocessor, 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 Client’s 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 applicable Services that require the use of the new subprocessor, on the condition that Client provides written notice to Company within 5 calendar days of providing Company with written notice of its Objection. If Client terminates the Services under the TOS pursuant to this Section, Client shall not be entitled to any refund of fees due and payable.
5. Client Obligations.
Client agrees that (i) Client shall comply with GDPR; (ii) Client has obtained all necessary rights to provide Company with the EU Personal Data; and, (iii) if Client is a processor under GDPR, Client shall ensure its actions with respect to the applicable EU Personal Data, and appointment of Company as a subprocessor, do not breach any agreements with the relevant controller or violate the GDPR.
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. Where required by the GDPR for the transfer of EU Personal Data, 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. For transfers subject to the UK GDPR, the parties agree as follows: (i) the SCCs will be modified and interpreted in accordance with the UK Addendum solely to the extent required under the UK GDPR for EU Personal Data subject to the UK GDPR; (ii) Tables 1, 2, and 3 of the UK Addendum will be deemed completed with the information set out in the Annexes to this DPA, (iii) neither party may end the UK addendum in accordance with section 19 thereof and Table 4 will be deemed completed by selecting “neither party”, and (iv) any conflict between the terms of the SCCs and the UK Addendum will be resolved in accordance with Section 10 and Section 11 of the UK Addendum.
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, the Company is the controller of such data and accordingly shall process 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.a. This Section shall apply to personal information subject to the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CCPA”). Pursuant to the CCPA, Company is a service provider to Client with respect to Consumer Information (as defined in the CCPA) and Client is a business. Company will process personal information in accordance with the terms in the TOS and this DPA, or as otherwise permitted by the CCPA and/or CPRA; and (c) Company will not sell consumer information as sell is defined under the CCPA. The following terms used in this section have the meanings given in the CCPA: “business”, “personal information”, “service provider”, “sell”, and “share”.b. Company will:i. implement and maintain commercially reasonable security procedures and practices as required by the CCPA.ii. not use the personal information outside the scope of the business relationship except as permitted by the CCPA as applicable to service providers;iii. not sell or share personal information collected as part the Services; andiv. notify Client if it can no longer meet its obligations as a service provider under the CCPA.
c. 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 if required by the CCPA and obtained all consents and rights required by the CCPA for Company to process personal information pursuant to the TOS and this DPA.
d. Nothing in this DPA shall prevent Company from engaging its own service providers in the processing of personal information, provided that Company shall enter into contractual arrangements with such service providers to protect the personal information as required by the CCPA.
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 TOS 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 TOS constitute the parties’ entire agreement and understanding with respect to the subject matter hereof. The obligations contained in this DPA are (i) subject to any limitations of liability set forth in the TOS and (ii) in addition to the other obligations contained in the TOS.
Exhibit A
Subject Matter, Nature, Purpose and Duration of the Processing
1. Type of EU Personal Data:
Client may provide EU Personal Data to Company in its use of the Services, the extent and types of Client Data as determined and controlled by Client, and the EU Personal Data may include without limitation the following categories: First name, last name, title, workplace address, email address, and telephone number(s).
2. Categories of Data Subject:
Client Users and individuals whose EU Personal Data is included in files uploaded to Company’s platform by Client and any other category of EU Personal Data provided by Client.
3. Subject Matter and Purposes EU Personal Data Processing:
Company’s provision of the Service to Client pursuant to the TOS.
4. The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis):
Continuous basis
5. Nature of the processing:
EU Personal Data will be processed in accordance with the TOS (including this DPA)
6. Purpose(s) of the data transfer and further processing:
EU Personal Data will be processed to provide the Services to Client pursuant to the TOS, this DPA, and the Order Form
7. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
As set forth in the TOS (including this DPA)
8. For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
As set forth in this DPA or the TOS.
Exhibit B
Subprocessors
The current list of subprocessors can be found at https://linksquares.zendesk.com/hc/en-us/articles/6922388406423-List-of-Subprocessors (the “Subprocessor List”). To the extent that Client opts in to receive notifications on the Subprocessor List, Client will be updated of any additions or replacements made to such list by Company.
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 organizational 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 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
8.3 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 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 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.
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 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 (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 10 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. 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 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.
Clause 10
Data 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
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 authorised 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, organisation 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.
Clause 12
Liability
(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.
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, 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 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, as defined in the TOS
Address: Address for Client as set out in Client’s order form
Activities relevant to the data transferred under these Clauses: Processing of EU Personal Data in connection with the Services as authorized in the TOS.
Role (controller/processor): Data Controller
Data importer:
Name: LinkSquares, Inc.
Address: 60 State Street, Suite 1200, Boston, MA 02109
Contact details: privacy@linksquares.com
Activities relevant to the data transferred under these Clauses: Processing of Client Personal Data in connection with the Services as authorized in the TOS
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 to
determine that period
As set out in Exhibit A
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
For purposes of hosting and supporting Company’s platform and services.
C. COMPETENT SUPERVISORY AUTHORITY
Data 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 https://linksquares.com/security-addendum.
Exhibit D
PIPEDA Data Protection Schedule
1. Context. The terms and conditions included in this Exhibit D shall apply to the extent that the Privacy Laws (as defined below) are applicable to Company while performing the Services under the TOS. The obligations under this Exhibit D shall survive the termination or expiration of the DPA or any renewal or extension thereof.
2. Definitions. For the purposes of this exhibit:
(a) “Canadian Personal Information” means information about an identifiable individual or personal health information that is regulated by any Privacy Laws that is transferred to, collected by, compiled, stored, or otherwise under the control or custody of the Company pursuant to the TOS and solely to perform the Services, and that is: (i) used to provide the Services; (ii) is about the Client’s clients, employees, past employees, or other individuals to whom the Client is under an obligation to comply with Privacy Laws; or, (iii) is otherwise held by the Company on behalf of the Client; and
(b) “Privacy Laws” means any applicable Canadian privacy laws including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada), or any substantially similar provincial laws, and any regulations, policies, requirements guidelines, or standards established, formulated or otherwise made pursuant thereto or in accordance therewith.
3. Control of and Rights in Canadian Personal Information. As between the Company and the Client, control of Canadian Personal Information shall always remain with the Client. The Company acknowledges and agrees that nothing gives the Company any right, title or interest in any Canadian Personal Information.
4. Access to and Use of Canadian Personal Information. The Company may access and use Canadian Personal Information on a need-to-know basis as expressly authorized by the Client for the sole and express purpose of fulfilling its obligations under the TOS. Any such access or use of Canadian Personal Information by the Company shall be to the extent necessary for the Company to fulfill its obligations under the TOS.
5. Security of Canadian Personal Information. Without limiting any other provision in this Exhibit or the TOS with regard to the security of information, the Company shall have in place reasonable policies, procedures and safeguards to protect the confidentiality and security of the Canadian Personal Information. The Company shall make reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure, disposal, loss or modification. The Company will protect the security and confidentiality of the Canadian Personal Information to at least the standard required by applicable Privacy Laws.
