This Data Processing Addendum ("DPA") is incorporated into and supplements the written Partner Terms & Conditions agreement (the “Agreement”), as updated from time to time, between the Partner entity that is a party to the Agreement (together with its Affiliates, "Partner") and Perform[cb], LLC ("Company").

Company enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Authorized Affiliates if and to the extent Partner processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term "Company" shall include Company and Authorized Affiliates.

All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the "Agreement" shall include this DPA, including the SCCs (where applicable), as defined herein.

1.  Definitions

(a) "Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.

(b) "Agreement" means any agreement between Partner and Company that incorporates this DPA and under which Partner provides one or more of the Services to Company.

(c)"Authorized Affiliate" means any of Company’s Affiliate(s) which (a) is subject to the EU Data Protection Laws and (b) is permitted to use the Services pursuant to the Agreement between the Company and Partner but has not signed its own Insertion Order with Partner and is not a “Company” as defined under this DPA.

(d) "Company Personal Data" means any personal data that Partner processes as a processor on behalf of Company via the Service, as more particularly described in this DPA. For the purposes of clarity, Company Personal Data does not include personal data for which Partner is a controller.

(e) "Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.

(f) "Data Protection Laws" means all data protection laws and regulations applicable to a party's processing of Company Personal Data under the Agreement, including, where applicable, EU Data Protection Law; State Privacy Laws; the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Brazilian General Data Protection Law ("LGPD"), Federal Law no. 13,709/2018; the Privacy Act 1988 of Australia, as amended ("Australian Privacy Law"); and the UK Data Protection Act 2018, together with any implementing regulations ("UK Data Protection Law").

(g) "EU Data Protection Law" means all data protection laws and regulations applicable to Europe, including (i) Regulation 2016/679 of the European Parliament and of the Council 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) ("GDPR"); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii).

(h) "EU SCCs" means the standard contractual clauses for processors as approved by the European Commission.

(i) "Europe" means, for the purposes of this DPA, the European Union, the European Economic Area and/or their member states, and Switzerland.

(j) "Personal Data Breach" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Company Personal Data on systems managed or otherwise controlled by Partner.

(k) "Services" means the relevant services identified in the Agreement.

(l) "SCCs" means the EU SCCs and the UK Addendum.

(m) "Special Category of Personal Data" means (a) genetic data (b) biometric data for the purpose of uniquely identifying a natural person; (c) data concerning health or a natural person’s sex life or sexual orientation; (d) personal data revealing racial, ethnic, political or religious beliefs, or trade union membership and (e) personal data relating to criminal convictions and offenses.

(n)  “State Privacy Laws” means all applicable data protection laws and regulations enacted by a U.S. state and applicable to its residents, including without limitation, the California Consumer Privacy Act (“CCPA”), the Colorado Privacy Act, the Connecticut Act Concerning Personal Data Privacy and Online Monitoring of 2022, the Indiana Consumer Data Protection Act, the Iowa Act Relating to Consumer Data Protection of 2023, the Montana Consumer Data Privacy Act, the Tennessee Information Protection Act, the Utah Consumer Privacy Act of 2022, and the Virginia Consumer Data Protection Act, in each case as amended and including any regulations promulgated thereunder. 

(o) "Sub-processor" means any processor engaged by Partner or its Affiliates to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA. Sub-processors may include third parties or Affiliates of Partner but shall exclude Partner employees, contractors, or consultants.

(p) "UK Addendum" means the International Data Transfer Addendum to the EU SCCs as approved by the UK Information Commissioner’s Office.

The terms "personal data", "controller", "data subject", "processor" and "processing" shall have the meaning given to them under applicable Data Protection Laws or if not defined thereunder, the GDPR, and "process", "processes" and "processed", with respect to any Company Personal Data, shall be interpreted accordingly.

The terms “business,” “business purpose,” “commercial purpose,” “consumer,” “controller,” “cross-contextual behavioral advertising,” “deidentified,” “personal data,” “personal information,” “process(ing)” “processor,” “sale,” “sell,” “service provider,” “share,” “targeted advertising” and “third party” shall have the meanings ascribed to them in State Privacy Laws.

References in this DPA to “controller,” “personal data,” and “processor” include “business,” “personal information,” and “service provider” respectively.

2.  Roles and Responsibilities

(a) Parties’ roles. If applicable Data Protection Laws apply to either party's processing of Company Personal Data, the parties acknowledge and agree that with regard to the processing of Company Personal Data, Company is the controller and Partner is a processor acting on behalf of Company, as further described in Appendix A (Details of Data Processing) of this DPA.

(b) Purpose limitation. Partner shall process Company Personal Data only in accordance with Company’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing ("Permitted Purposes"). The parties agree that the Agreement sets out Company’s complete and final instructions to Partner in relation to the processing of Company Personal Data, and processing outside the scope of these instructions (if any) shall be in writing between the parties.

(c)Prohibited data. Unless otherwise set forth in Appendix A of this DPA, Company will not provide (or cause to be provided) any Special Category of Personal Data to Partner for processing under the Agreement, and Partner will have no liability whatsoever for such data, whether in connection with a Personal Data Breach or otherwise.

(d) Company compliance. Company represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Company Personal Data and any processing instructions it issues to Partner; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for Partner to process Company Personal Data for the purposes described in the Agreement. Company shall have sole responsibility for the accuracy, quality, and legality of Company Personal Data and the means by which Company acquired Company Personal Data.

(e) Lawfulness of Company's instructions. Company will ensure that Partner's processing of the Company Personal Data in accordance with Company’s instructions will not cause Partner to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. Partner shall promptly notify Company in writing, unless prohibited from doing so under applicable Data Protection Laws, if it becomes aware or believes that any data processing instruction from Company violates the GDPR or any UK implementation of the GDPR.

3.  Sub-processing

(a) Authorized Sub-processors. Company provides Partner with general written authorization to engage Sub-processors to process Company Personal Data on Company's behalf for the purposes of providing the Services. Partner will make a list of relevant Sub-processors available to Company. If Company objects to the engagement of a new Sub-processor on reasonable grounds within ten (10) days, Partner will use reasonable efforts to make a change in the Services or recommend a commercially reasonable change to avoid processing by such Sub-processor. If Partner is unable to provide an alternative, Company may terminate only the affected Services and receive a refund of prepaid fees on a pro-rated basis.

(b) Sub-processor obligations. Partner shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Company Personal Data as those in this DPA; and (ii) remain liable for the performance of such Sub-processor’s compliance with the obligations under this DPA.

4.  Security

(a) Security Measures. Partner shall implement and maintain appropriate technical and organizational security measures that are designed to protect Company Personal Data from Personal Data Breach and designed to preserve the security and confidentiality of Company Personal Data in accordance with Partner's security standards described in Appendix B ("Technical and Organizational Measures").

(b) Confidentiality of processing. Partner shall ensure that individuals authorized by Partner to process Company Personal Data shall be under an appropriate obligation of confidentiality.

(c)Updates to Security Measures. Company is responsible for reviewing the information made available by Partner relating to data security and making an independent determination as to whether the Service meets Company’s requirements and legal obligations under Data Protection Laws. Company acknowledges that the Security Measures are subject to technical progress and development and that Partner may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Service provided to Company.

(d) Personal Data Breach response. Upon becoming aware of a Personal Data Breach, Partner shall: (i) notify Company without undue delay, and where feasible, in any event no later than 48 hours upon determining that a Personal Data Breach has occurred; (ii) provide timely information relating to the Personal Data Breach as it becomes known or as is reasonably requested by Company; and (iii) promptly take reasonable steps to contain and investigate any Personal Data Breach. Company agrees that an unsuccessful Personal Data breach will not be subject to this Section 4(d). An unsuccessful Personal Data Breach is one that results in no unauthorised access to Company Personal Data or any facilities or equipment of Partner storing Company Personal Data. Partner's notification of or response to a Personal Data Breach under this Section 4(d) shall not be construed as an acknowledgment by Partner of any fault or liability with respect to the Personal Data Breach.

5.  Audits

(a) Audit rights. Upon at least 30 days written notice by Company, Partner shall make available to Company all information reasonably necessary to demonstrate compliance with this DPA and as required by Data Protection Laws, allow for and contribute to audits, including inspections by Company in order to assess compliance with this DPA. Before the commencement of any audit, Company and Partner shall mutually agree upon the scope, timing, and duration of the audit. Company shall reimburse Partner for any time expended by the Partner or its third-party Sub-processors for any such audit. All reimbursement rates shall be reasonable, taking into account the resources expended by Partner, or its third-party Sub-processors. Audits and inspections are subject to Partner’s reasonable data protection policies, and do not extend to employee payroll, personnel records or any portions of Partner’s sites, books, documents, records or other information that do not relate to the Company Personal Data or are otherwise commercially sensitive or legally privileged. The information obtained during an audit or inspection, and the results of such, will be considered Partner’s Confidential Information.

(b) Company audits. To the extent Partner or a Sub-processor holds a System and Organization Controls (SOC) 2 report, System and Organization Controls (SOC) 3 report or ISO 27001 certification that covers the Services, Company agrees to exercise any right Company may have to conduct an audit or inspection under Section 5(a) of this DPA or under the SCCs if they apply, by instructing Partner in writing to provide a copy of its most current report or certification, which will be considered Partner’s Confidential Information. If the SCCs apply, nothing in this Section modifies or affects any supervisory authority’s or data subject’s rights under the SCCs.

6. International Transfers

(a) Data center locations. Subject to Sections 6(b) and 6(c), Company acknowledges that Partner may transfer and process Company Personal Data to and in the United States and anywhere else in the world where Partner, its Affiliates or its Sub-processors maintain data processing operations. Partner shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.

(b) Australian transfers. To the extent that Partner is a recipient of Company Personal Data protected by the Australian Privacy Law, the parties acknowledge and agree that Partner may transfer such Company Personal Data outside of Australia as permitted by the terms agreed upon by the parties and subject to Partner complying with this DPA and the Australian Privacy Law.

(c) European Data transfers. To the extent that Partner is a recipient of Company Personal Data protected by EU Data Protection Laws ("EU Data") in a country outside of Europe that is not recognized as providing an adequate level of protection for personal data (as described in applicable EU Data Protection Law), the parties agree to abide by and process EU Data in compliance with the EU SCCs in the form set out in Appendix C. For the purposes of the descriptions in the EU SCCs, Partner agrees that it is the "data importer" and Company is the "data exporter" (notwithstanding that Company may itself be an entity located outside Europe).

(d) UK data transfers. To the extent that Partner is a recipient of Company Personal Data protected by UK Data Protection Law ("UK Data") in a country outside of the UK that is not recognized as providing an adequate level of protection for personal data (as described in applicable UK Data Protection Law), the parties agree to abide and by and process UK Data in compliance with the UK Addendum in the form set out in Appendix D. For the purposes of the descriptions in the UK Addendum, the party transferring the Company Personal Data is the “data exporter” and the party receiving it is the “data importer.”

(e) Alternative transfer mechanism. To the extent Partner adopts an alternative data export mechanism (including any new version of or successor to the SCCs) for the transfer of EU Data or UK Data not described in this DPA ("Alternative Transfer Mechanism"), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable Data Protection Law and extends to the countries to which the applicable data is transferred). In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer EU Data or UK Data (within the meaning of applicable Data Protection Law), Partner may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of such data.

6.  Return or Deletion of Data

Upon termination or expiration of the Agreement and upon Company’s written request and election, Partner shall (at Company's election) delete or return to Company all Company Personal Data (including copies) in its possession or control. This requirement shall not apply (i) to the extent Partner is required by applicable law to retain some or all of the Company Personal Data; or (ii) to Company Personal Data Partner has archived on back-up systems, which Company Personal Data Partner shall securely isolate and protect from any further processing until it is deleted in accordance with Partner's deletion policies.

7.  Data Subject Rights and Cooperation

(a) Data subject requests. As part of the Service, Partner provides Company with several self-service features, that Company may use to retrieve, correct, delete or restrict the use of Company Personal Data, which Company may use to assist it in connection with its obligations under the Data Protection Laws with respect to responding to requests from data subjects via Company's account at no additional cost. In addition, Partner shall, taking into account the nature of the processing, provide reasonable additional assistance to Company to the extent possible to enable Company to comply with its data protection obligations with respect to data subject rights under applicable Data Protection Laws. If Partner is required by applicable law to respond to such a request, Partner shall promptly notify Company and provide Company with a copy of the request unless Partner is legally prohibited from doing so.

(b) Data protection impact assessment. To the extent required under applicable Data Protection Laws, Partner shall (taking into account the nature of the processing and the information available to Partner) provide all reasonably requested information regarding the Service to enable Company to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws.

8.  Jurisdiction-Specific Terms

To the extent Partner processes Company Personal Data originating from and protected by Data Protection Laws in one of the jurisdictions listed in Appendix E, then the terms specified in Appendix E with respect to the applicable jurisdiction(s) (“Jurisdiction-Specific Terms”) apply in addition to the terms of this DPA. In the event of any conflict or ambiguity between the Jurisdiction-Specific Terms and any other terms of this DPA, the applicable Jurisdiction-Specific Terms will take precedence, but only to the extent of the Jurisdiction-Specific Terms’ applicability to Partner.

9.  General Terms

(a) Term. This DPA shall remain in effect for as long as Partner carries out Company Personal Data processing operations on behalf of Company or until termination of the Agreement (and all Company Personal Data has been returned or deleted in accordance with Section 7 above).

(b) Precedence. The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service. In the event of any conflict or inconsistency between this DPA and the remainder of the Agreement, the provisions of the following documents (in order of precedence) shall prevail: (i) SCCs; then (ii) this DPA; and then (iii) the remainder of the Agreement (which shall be interpreted in accordance with any order of precedence set forth therein).

(c)Effects of changes. Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.

(d) Third-party rights. No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

(e) Governing law. This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

Appendix A – Details of Data Processing

Controller (data exporter):

The Company and/or any Authorized Affiliates who qualify as controller under the terms of this DPA.

Processor (data importer):

The Partner entity and/or any Partner Affiliate(s) who process Company Personal Data under the terms of this DPA.

Subject matter:

The subject matter of the data processing under this DPA is the Company Personal Data.

Duration of processing:

Partner will process Company Personal Data as outlined in Section 7 (Return or Deletion of Data) of this DPA.

Purpose and nature of processing:

The purpose and nature of the processing of the Company Personal Data shall include: (i) processing as necessary to provide the Services in accordance with the Agreement; (ii) to fulfill Partner’s obligations under the Agreement and this DPA; and (iii) to comply with any other reasonable instructions provided by controller (e.g., via email or support tickets) that are consistent with the terms of the Agreement and (iv) as set forth by Service below.

Categories of data subjects:

Controller may submit Company Personal Data to the Services, the extent of which is determined and controlled by controller in its sole discretion, and which may include, but is not limited to Company Personal Data relating to the categories of data subjects set forth by Service below.

Categories of personal data:

Controller may submit Company Personal Data to the Services, the extent of which is determined and controlled by controller in its sole discretion, and which may include, but is not limited to the categories of Personal Data set forth by Service below.

Special Categories of Personal Data (as defined by the GDPR) or Sensitive Data:

Partner does not want to, nor does it intentionally, collect or process any Special Categories of Personal Data in connection with the provision of the Service.

Processing Operations:

Company Personal Data will be processed in accordance with the Agreement (including this DPA and any Statements of Work or Insertion Orders) and as necessary to provide, maintain and improve the Services provided to Company pursuant to the Agreement and/or as compelled by applicable law, and may be subject to the following processing operations:

Any operation or set of operations, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Frequency of Personal Data Transfer:

Company Personal Data will be transferred at the outset

Period of Retention:

Data will be retained for the duration of the Agreement and as outlined in Section 7 of the DPA.

The descriptions above also apply to Partner’s transfers to subprocessors.

Appendix B – Technical and Organizational Measures

The technical and organizational measures applicable to the Service are described here (as updated from time to time in accordance with Section 4(c) of this DPA).

1.   By Company

Personnel

All our staff are made aware of their responsibilities, our policies and standards and receive regular guidance and support from our IT team on best practices relating to data security.

In accordance with relevant laws and regulations, adequate background verification checks are performed while recruiting an individual as permanent staff to reduce the possibility of threat to critical information assets.

We conduct mandatory information security training on an ongoing basis and provide supplemental training to specific target groups and individuals as required. Our staff are bound by obligations of confidentiality and understand the consequences for failing to adhere to our policies and their responsibilities.

An employee exit process is followed which involves revocation of system permissions/access rights and return of Partner assets in a timely manner.

User Access management

We have a well-defined process for granting access to all information assets. Privileges and access rights are granted to employees based on “Need-to-know” and “Least-privilege” principles to protect information assets against unauthorized access and disclosure. Password policy is enforced across the board on all information assets, which ensures a minimum length, complexity, password expiry, history and account lockout requirements in case of failed attempts.

Infrastructure security

Our services are offered through public and private networks. Communications are protected against eavesdropping by secure channels, and strong encryption. 

Endpoint and virus protection

In line with our policies, all Partner owned and supported operating systems which are hosted in our data centers or deployed in the cloud are required to be configured with our antivirus solution.

Patch management

We gather and review security threat intelligence from our internal vulnerability management tools, vendors and other third-party security organizations. Our patch management standard provides appropriate patching practices to our technology teams. At times, additional security controls may be implemented to provide mitigation against known threats.

Security monitoring

Automated and systemic centralized security logging and monitoring of the operating environment is ongoing for the purpose of real-time awareness, event correlation and incident response.

Incident response

An incident response plan is in place to address incidents as they are identified. Incidents are managed by a dedicated incident response team which follows a documented procedure for mitigation and communications. 

Capacity management and monitoring

Monitoring of systems, services and operations are implemented to ensure the health of our operating environments. Management tools are implemented to monitor and maintain an appropriately scaled and highly available environment.

Risk assessment

Our product and technology teams engage third parties regularly to provide vulnerability scanning and other risk assessments services. Architecture reviews, external vulnerability scans, application security testing and technical compliance reviews are several of the services performed during risk assessment activities.

2.   By Partner

[insert description of security measures employed by Partner]

Appendix C - EU Standard Contractual Clauses

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

(iii)            Clause 9 – Clause 9(a), (c), (d) and (e);

(iv)            Clause 12 – Clause 12(a), (d) and (f);

(v)             Clause 13;

(vi)            Clause 15.1(c), (d) and (e);

(vii)           Clause 16(e);

(viii)          Clause 18 – 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 – Optional [Intentionally omitted.]

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 exporter shall process the personal data only on documented instructions from the data importer acting as its controller.

(b)    The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.

(c)    Rhe data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.

(d)    After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies

8.2    Security of processing

(a)             The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature of the personal data (7), the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.

(b)             The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.

(c)             The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

8.3    Documentation and compliance

(a)             The Parties shall be able to demonstrate compliance with these Clauses.

(b)             The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.

Clause 9

Use of sub-processors

[Not Applicable to Module Four; provided, however, the DPA and Agreement impose restrictions and obligations on the use of sub-processors]

Clause 10

Data subject rights

The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.

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)             Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.

(c)             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.

(d)             The Parties agree that if one Party is held liable under paragraph (c), 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.

(e)             The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.

Clause 13

Supervision

[Not Applicable to Module Four].

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 a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

Clause 18

Choice of forum and jurisdiction

Any dispute arising from these Clauses shall be resolved by the courts of the United States.

ANNEX 1 TO THE EU STANDARD CONTRACTUAL CLAUSES

(Module 4)

A.     LIST OF PARTIES

Data exporter:

The Partner and/or Authorized Affiliates who transfer the Company Personal Data under the terms of Data Processing Addendum ("DPA") to which these Clauses are appended.

Data importer:

The Company, acting as data importer on behalf of itself or its Affiliates where applicable, who agrees to receive from the Data Exporter Company Personal Data under the terms of DPA to which these Clauses are appended.

B.     DESCRIPTION OF THE TRANSFER

Please see the details set forth in Appendix A to the DPA to which these Clauses are appended.

ANNEX 2 TO THE EU STANDARD CONTRACTUAL CLAUSES

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

These are not required under the Clauses where, as here, the processor is exporting personal data to the controller. However, the parties, and each of them, have implemented technical and organizational measures as set forth in Appendix B of the DPA.

ANNEX 3 TO EU STANDARD CONTRACTUAL CLAUSES

The parties acknowledge that Clause 2(a) of the Clauses permits them to include additional business-related terms provided they do not contradict, directly or indirectly, the Clauses or prejudice the fundamental rights or freedoms of data subjects.

Accordingly, this Annex sets out the parties' interpretation of their respective obligations under specific Clauses identified below. Where a party complies with the interpretations set out in this Annex, that party shall be deemed by the other party to have complied with its commitments under the Clauses.

Clause 9: Subprocessors

1.      The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.

2.      The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.

3.      Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably can in connection with such subprocessing agreement to data exporter.

Clause 12: Liability

To the extent permissible, any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In no event, shall any party limit its liability with respect to any data subject rights under these Clauses.

Appendix D – UK International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Table 4: Ending this Addendum when the Approved Addendum Changes

Part 2: Mandatory Clauses

Entering into this Addendum

1.        Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

2.        Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum 

3.        Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

4.        This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards. 

5.        If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

6.        If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

7.        If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies. 

8.        Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into. 

Hierarchy 

9.        Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.

10.     Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11.     Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12.     This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

a.    together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers; 

b.    Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and

c.    this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

13.     Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.

14.     No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.

15.     The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made: 

a.      References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;

b.     In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

c.      Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

d.     Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

e.     Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

f.       References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;

g.     References to Regulation (EU) 2018/1725 are removed;

h.     References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;

i.       The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;

j.       Clause 13(a) and Part C of Annex I are not used; 

k.      The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;

l.       In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

m.    Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

n.     Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

o.     The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11. 

Amendments to this Addendum 

16.     The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17.     If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

18.     From time to time, the ICO may issue a revised Approved Addendum which: 

a.     makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or

b.     reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified. 

19.     If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in: 

a        its direct costs of performing its obligations under the Addendum; and/or 

b        its risk under the Addendum, 

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20.     The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Appendix E - Jurisdiction-Specific Terms

State Privacy Laws

If Personal Data provided to Company by Partner (or otherwise processed by Partner as part of the services provided to Company) is subject to the State Privacy Laws, in addition to the obligations set out in this DPA, Partner will:

1. Not retain, use, or disclose the Personal Data outside of the direct business relationship with Company or for any purpose, including commercial purposes, other than as permitted under this DPA, unless otherwise permitted by the State Privacy Laws.
2. Upon notice from Company of its reasonable belief that Partner is Processing Personal Data in an unauthorized manner, cooperate with Company in good faith to stop or remediate the allegedly unauthorized use of such Personal Data, as necessary, such as by providing documentation verifying certain practices.
3. Notify the Company without undue delay if Partner determines it can no longer meet its obligations under the State Privacy Laws.
4. Except as otherwise permitted by this DPA or the State Privacy Laws, not combine the Company Personal Data with Personal Data received from or on behalf of another person or source or that Partner collects from its own interactions with Consumers outside of the services performed for Company under the Agreement. Notwithstanding the foregoing and to the extent permitted by the State Privacy Laws, Partner may combine Personal Data from Company with Personal Data provided to Partner from an independent business to the extent (i) Partner is a Joint Processor to both Company and the independent business; and (ii) such independent business has executed with Partner terms substantially similar to the terms imposed on Partner under this DPA.

Contact Information

If you still have questions about this policy, you can contact our support team here.