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Data Processing Addendum

Hyperscience

DATA PROCESSING ADDENDUM

The undersigned customer (“Customer”) and Hyper Labs, Inc. d/b/a Hyperscience (“Provider”) enter into this Data Processing Addendum (including the annexes attached hereto, this “DPA”) as of the date signed by both parties and forms part of that certain Master Services Agreement (as amended, the “Agreement”) between the parties under which Provider will provide certain services (collectively, the “Services”) to Customer.

1. DEFINITIONS

1.1 For purposes of this DPA, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this DPA have the meanings given in the Agreement.

(a) Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.

(b) Applicable Data Protection Laws means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to the Processing of Personal Data under the Agreement, including, without limitation, European Data Protection Laws and the CCPA.

(c) CCPA means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder.

(d) Customer Data means information provided or made available to Provider for Processing on Customer’s behalf to perform the Services.

(e) EEA means the European Economic Area.

(f) EEA SCCs or EEA Standard Contractual Clauses means the standard contractual clauses approved by the European Commission pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021, the current form of which is attached as Annex 3.

(g) EU GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time.

(h) European Data Protection Laws means the GDPR and other data protection laws and regulations of the European Union, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom, in each case, to the extent applicable to the Processing of Personal Data under the Agreement.

(i) GDPR means the EU GDPR and the UK GDPR, as amended from time to time together with any applicable implementing or supplementary legislation in any member state of the EEA or the UK (including the UK Data Protection Act 2018).

(j) Information Security Incident means a breach of Provider’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Provider’s possession, custody or control. Information Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.

(k) Personal Data means Customer Data that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Data Protection Law, or information of a similar character regulated thereby, except that Personal Data does not include such information pertaining to Customer’s personnel or representatives who are business contacts of Provider, where Provider acts as a controller of such information.

(l) Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, 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.

(m) Relevant Body:

(i) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office and/or UK Government (as and where applicable); and/or

(ii) in the context of the EEA and EU GDPR, means the European Commission.

(n) Restricted Country:

(i) in the context of the UK, means a country or territory outside the UK; and

(ii) in the context of the EEA, means a country or territory outside the EEA (which shall, as and where applicable, be interpreted in line with Article FINPROV.10A(1) of the Trade and Cooperation Agreement between the EU and the UK),

(iii) that the Relevant Body has not deemed to provide an “adequate” level of protection for Personal Data pursuant to a decision made in accordance Article 45(1) of the GDPR.

(o) Security Measures has the meaning given in Section 4(a) (Provider’s Security Measures).

(p) Standard Contractual Clauses or SCCs means the EEA SCCs or UK SCCs, as appropriate.

(q) Subprocessors means third parties that Provider engages to Process Personal Data in relation to the Services.

(r) Supervisory Authority:

(i) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office; and

(ii) in the context of the EEA and EU GDPR, shall have the meaning given to that term in Article 4(21) of the EU GDPR.

(s) Third Party Subprocessors has the meaning given in Section 5 (Subprocessors) of Annex 1.

(t) The terms controller, data subject and processor as used in this DPA have the meanings given in the GDPR.

(u) UK means the United Kingdom of Great Britain and Northern Ireland.

(v) UK GDPR means the EU GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended (including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019).

(w) UK SCCs or the UK Standard Contractual Clauses means the standard contractual clauses approved by the European Commission pursuant to Commission Implementing Decision (EU) 2010/87, the current form of which is attached as Annex 4.

1.2 Customer warrants and represents that the Processing delegated to Provider under the Agreement is subject to the territorial scope of the GDPR as determined in accordance therewith (including pursuant to Article 3 of the GDPR). Customer further agrees that to the extent that the same is not in fact subject to the territorial scope of the GDPR, this DPA shall be deemed automatically void with effect from the effective date of this DPA without requirement of notice.

2. Duration and Scope of DPA.

(a) This DPA will remain in effect so long as Provider Processes Personal Data, notwithstanding the expiration or termination of the Agreement.

(b) Annex 1 (EU Annex) to this DPA applies solely to Processing subject to European Data Protection Laws. Annex 2 (California Annex) to this DPA applies solely to Processing subject to the CCPA if Customer is a “business” or “service provider” (as defined in CCPA) with respect to such Processing.

3. Customer Instructions

Provider will Process Personal Data only in accordance with Customer’s instructions to Provider. This DPA is a complete expression of such instructions, and Customer’s additional instructions will be binding on Provider only pursuant to an amendment to this DPA signed by both parties. Customer instructs Provider to Process Personal Data to provide the Services as contemplated by this Agreement.

4. Security.

(a) Provider Security Measures. Provider will implement and maintain technical and organizational measures designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data (the “Security Measures”) as described in Annex 5 (Security Measures). Provider may update the Security Measures from time to time, so long as the updated measures do not decrease the overall protection of Personal Data.

(b) Information Security Incidents. Provider will notify Customer without undue delay of any Information Security Incident of which Customer becomes aware. Such notifications will describe available details of the Information Security Incident, including information to allow Customer to meet any obligations under the GDPR to report the Information Security Incident to affected Data Subjects; or the relevant Supervisory Authority(ies) (as may be determined in accordance with the GDPR). Provider’s notification of or response to an Information Security Incident will not be construed as Provider’s acknowledgement of any fault or liability with respect to the Information Security Incident.

(c) Customer’s Security Responsibilities and Assessment.

(i) Customer’s Security Responsibilities. Customer agrees that, without limitation of Provider’s obligations under Section 4 (Security), Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that Provider uses to provide the Services; and (d) backing up Personal Data.

(ii) Customer’s Security Assessment. Customer agrees that the Services, the Security Measures and Provider’s commitments under this DPA are adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Data Protection Laws, and provide a level of security appropriate to the risk in respect of the Personal Data.

5. Data Subject Rights.

(a) Provider’s Data Subject Request Assistance. Provider will (taking into account the nature of the Processing of Personal Data) provide Customer with assistance reasonably necessary and technically possible in the circumstances for Customer to perform its obligations under Applicable Data Protection Laws to fulfill requests by data subjects to exercise their rights under Applicable Data Protection Laws (“Data Subject Requests”) with respect to Personal Data in Provider’s possession or control. Customer shall compensate Provider for any such assistance at Provider’s then-current professional services rates, which shall be made available to Customer upon request.

(b) Customer’s Responsibility for Requests. If Provider receives a Data Subject Request, Provider will advise the data subject to submit the request to Customer and Customer will be responsible for responding to the request.

6. Customer Responsibilities.

(a) Customer Compliance. Customer shall comply with its obligations under Applicable Data Protection Laws. Customer shall ensure (and is solely responsible for ensuring) that its instructions in Section 3 comply with Applicable Data Protection Laws, and that Customer has given all notices to, and has obtained all such notices from, individuals to whom Personal Data pertains and all other parties as required by applicable laws or regulations for Customer to Process Personal Data as contemplated by the Agreement.

(b) Prohibited Data. Customer represents and warrants to Provider that Customer Data does not and will not, without Provider’s prior written consent, contain any social security numbers or other government-issued identification numbers, protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) or other information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; health insurance information; biometric information; passwords for online accounts; credentials to any financial accounts; tax return data; credit reports or consumer reports; any payment card information subject to the Payment Card Industry Data Security Standard; information subject to the Gramm-Leach-Bliley Act, Fair Credit Reporting Act or the regulations promulgated under either such law; information subject to restrictions under Applicable Data Protection Laws governing Personal Data of children, including, without limitation, all information about children under 13 years of age; or any information that falls within any special categories of data (as defined in GDPR).

7. Miscellaneous.

Except as expressly modified by the DPA, the terms of the Agreement remain in full force and effect. In the event of any conflict or inconsistency between this DPA and the other terms of the Agreement, this DPA will govern. Notwithstanding anything in the Agreement or any order form entered in connection therewith to the contrary, the parties acknowledge and agree that Provider’s access to Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement. Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Provider to Customer under this DPA may be given (a) in accordance with any notice clause of the Agreement; (b) to Provider’s primary points of contact with Customer; or (c) to any email provided by Customer for the purpose of providing it with Services-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

ANNEX 1 to DPA: EU ANNEX

1. Processing of Data.

(a) Subject Matter and Details of Processing. The parties acknowledge and agree that (i) the subject matter of the Processing under the Agreement is Provider’s provision of the Services; (ii) the duration of the Processing is from Provider’s receipt of Personal Data until deletion of all Personal Data by Provider in accordance with the Agreement; (iii) the nature and purpose of the Processing is to provide the Services; (iv) the data subjects to whom the Personal Data pertains are individuals about whom Provider Processes in connection with the Services; and (v) the categories of personal data are provided by Customer or its users in connection with the Services.

(b) Roles and Regulatory Compliance; Authorization. The parties acknowledge and agree that (i) Provider is a processor of that Personal Data under European Data Protection Laws; (ii) Customer is a controller (or a processor acting on the instructions of a controller) of that Personal Data under European Data Protection Laws; and (iii) each party will comply with the obligations applicable to it in such role under the European Data Protection Laws with respect to the Processing of that Personal Data. If Customer is a processor, Customer represents and warrants to Provider that Customer’s instructions and actions with respect to Personal Data, including its appointment of Provider as another processor, have been authorized by the relevant controller.
(c) Provider’s Compliance with Instructions. Provider will Process Personal Data only in accordance with Customer’s instructions stated in this DPA unless applicable European Data Protection Laws require otherwise, in which case Provider will notify Customer (unless that law prohibits Provider from doing so on important grounds of public interest).

(d) Data Deletion. Provider shall delete all the Personal Data on Provider’s systems on Customer’s request and after the end of the provision of Services, and shall delete existing copies unless continued storage of the Personal Data is required by (i) applicable laws of the European Union or its Member States, with respect to Personal Data subject to European Data Protection Laws or (ii) Applicable Data Protection Laws, with respect to all other Personal Data. Provider will comply with such instruction as soon as reasonably practicable and no later than 180 days after such expiration or termination, unless Applicable Data Protection Laws require storage. Customer may choose to request a copy of such Personal Data from Provider for an additional charge by requesting it in writing at least 30 days prior to expiration or termination of the Agreement. Upon the parties’ agreement to such charge pursuant to a work order or other amendment to the Agreement, Provider will provide such copy of such Personal Data before it is deleted in accordance with this clause.

2. Data Security.

(a) Provider Security Measures, Controls and Assistance.

(i) Provider Security Assistance. Provider will (taking into account the nature of the Processing of Personal Data and the information available to Provider) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Personal Data under European Data Protection Laws, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 4(b) (Information Security Incidents) of the DPA; and (c) complying with this Annex 1.

(ii) Security Compliance by Provider Staff. Provider ensure that its personnel who are authorized to access Personal Data are subject to appropriate confidentiality obligations.

(b) Reviews and Audits of Compliance. Customer may audit Provider’s compliance with its obligations under this DPA up to once per year and on such other occasions as may be required by European Data Protection Laws, including where mandated by Customer’s Supervisory Authority. Provider will contribute to such audits by providing Customer or Customer’s Supervisory Authority with the information and assistance that Provider considers appropriate in the circumstances and reasonably necessary to conduct the audit. If a third party is to conduct the audit, Provider may object to the auditor if the auditor is, in Provider’s reasonable opinion, not independent, a competitor of Provider, or otherwise manifestly unsuitable. Such objection by Provider will require Customer to appoint another auditor or conduct the audit itself. In the event that Customer (acting reasonably) is able to provide documentary evidence that the information made available by Provider is not sufficient in the circumstances to demonstrate Provider’s compliance with this DPA, Provider shall allow for and contribute to audits, including on premise inspections, by Customer or a third party auditor mandated by Customer in relation to the Processing of the Customer Personal Data by Provider. To request an audit, Customer must submit a proposed audit plan to Provider at least two weeks in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Provider will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Provider security, privacy, employment or other relevant policies). Provider will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 2(b) shall require Provider to breach any duties of confidentiality. If the controls or measures to be assessed in the requested audit are addressed in an SOC 2 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Provider has confirmed there have been no known material changes in the controls audited since the date of such report, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures. The audit must be conducted during regular business hours, subject to the agreed final audit plan and Provider’s safety, security or other relevant policies, and may not unreasonably interfere with Provider business activities. Customer shall use its best efforts (and ensure that each of its mandated auditors uses its best efforts) to avoid causing, and hereby indemnifies Provider in respect of, any damage, injury or disruption to Provider’s premises, equipment, its personnel, data, and business (including any interference with the confidentiality or security of the data of Provider’s other customers or the availability of Provider’s services to such other customers) while its personnel and/or its auditor’s personnel (if applicable) are on those premises in the course of any on premise inspection, Customer will promptly notify Provider of any non-compliance discovered during the course of an audit and provide Provider any audit reports generated in connection with any audit under this Section 2(b), unless prohibited by European Data Protection Laws or otherwise instructed by a Supervisory Authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA. Any audits are at Customer’s sole expense. Customer shall reimburse Provider for any time expended by Provider and any third parties in connection with any audits or inspections under this Section 2(b) at Provider’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

3. Data Protection Impact Assessments and Consultations.

Provider will (taking into account the nature of the Processing and the information available to Provider) reasonably assist Customer, at Customer’s cost, in complying with its obligations under Articles 35 and 36 of the GDPR, in each case solely in relation to Processing of Customer Personal Data, by (a) making available documentation describing relevant aspects of Provider’s information security program and the security measures applied in connection therewith and (b) providing the other information contained in the Agreement, including this DPA.

4. Data Transfers.

(a) Data Processing Facilities. Provider may, subject to Section 4(b) (Transfers out of the EEA) and 4(c) (Transfers out of the UK), store and Process Personal Data in the United States or anywhere Provider or its Subprocessors maintains facilities.

(b) Transfers out of the EEA. If Customer transfers Personal Data out of the EEA to Provider in a country not deemed by the European Commission to have adequate data protection, such transfer will be governed by the EEA Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:

(i) Customer will act as the data exporter and Provider will act as the data importer under the EEA Standard Contractual Clauses;

(ii) for purposes of Appendix 1 to the EEA Standard Contractual Clauses, the categories of data subjects, data, special categories of data (if appropriate), and the Processing operations shall be as set out in Section 1(a) to this Annex 1 (Subject Matter and Details of Processing);

(iii) for purposes of Appendix 2 to the EEA Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;

(iv) data importer will provide the copies of the subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the EEA Standard Contractual Clauses upon data exporter’s request, and that data importer may remove or redact all commercial information or clauses unrelated the EEA Standard Contractual Clauses or their equivalent beforehand;

(v) the audits described in Clause 5(f) and Clause 12(2) of the EEA Standard Contractual Clauses shall be performed in accordance with Section 2(b) of this Annex 1 (Reviews and Audits of Compliance);

(vi) Customer’s authorizations in Section 5 (Subprocessors) of this Annex 1 will constitute Customer’s prior written consent to the subcontracting by Provider of the Processing of Personal Data if such consent is required under Clause 5(h) of the EEA Standard Contractual Clauses; and

(vii) certification of deletion of Personal Data as described in Clause 12(1) of the EEA Standard Contractual Clauses shall be provided upon data importer’s request.

(c) Transfers out of the UK. If Customer transfers Personal Data out of the UK to Provider in a country not deemed by the UK Government to have adequate data protection, such transfer will be governed by the UK Standard Contractual Clauses attached to this DPA as Annex 4. In furtherance of the foregoing, the parties agree that:

(i) Customer will act as the data exporter and Provider will act as the data importer under the UK Standard Contractual Clauses;

(ii) for purposes of Appendix 1 to the UK Standard Contractual Clauses, the categories of data subjects, data, special categories of data (if appropriate), and the Processing operations shall be as set out in Section 1(a) to this Annex 1 (Subject Matter and Details of Processing); and

(iii) for purposes of Appendix 2 to the UK Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures.

(d) Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply to the extent an alternative recognized compliance standard for the transfer of Personal Data outside the EEA or the UK in accordance with European Data Protection Laws applies to the transfer. In the event of any conflict or inconsistency between (a) this Annex 1 and any other provision of this DPA, this Annex 1 will govern, or (b) the Standard Contractual Clauses and any other provision of this Agreement, the Standard Contractual Clauses will govern.

5. Subprocessors.

(a) Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Provider’s Affiliates as Subprocessors and generally authorizes the engagement of other third parties as Subprocessors (“Third Party Subprocessors”).

(b) Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at: hyperscience.com/subprocessors (as may be updated by Provider from time to time) or such other website address as Provider may provide to Customer from time to time (the “Subprocessor Site”).

(c) Requirements for Subprocessor Engagement. When engaging any Subprocessor, Provider will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the services provided by such Subprocessor. Provider shall be liable for all obligations under the Agreement subcontracted to, the Subprocessor or its actions and omissions related thereto.

(d) Opportunity to Object to Subprocessor Changes. When Provider engages any new Third Party Subprocessor after the effective date of the Agreement, Provider will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating the Subprocessor Site or by other written means. If Customer objects to such engagement in a written notice to Provider within 15 days after being informed of the engagement on reasonable grounds relating to the protection of Personal Data, Customer and Provider will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement and cancel the Services by providing written notice to Provider and pay Provider for all amounts due and owing under the Agreement as of the date of such termination.

ANNEX 2 to DPA: CALIFORNIA ANNEX

  1. For purposes of this Annex 2, the terms “business,” “commercial purpose,” “sell” and “service provider” shall have the respective meanings given thereto in the CCPA, and “personal information” shall mean Personal Data that constitutes personal information governed by the CCPA.
  2. It is the parties’ intent that with respect to any personal information, Provider is a service provider. Provider shall not (a) sell any personal information; (b) retain, use or disclose any personal information for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing the personal information for a commercial purpose other than the provision of the Services; or (c) retain, use or disclose the personal information outside of the direct business relationship between Provider and Customer. Provider hereby certifies that it understands its obligations under this Section 2 and will comply with them.
  3. The parties acknowledge that Provider’s retention, use and disclosure of personal information authorized by Customer’s instructions documented in the DPA are integral to Provider’s provision of the Services and the business relationship between the parties.

ANNEX 3 to DPA: EEA STANDARD CONTRACTUAL CLAUSES TRANSFERS OF PERSONAL DATA ORIGINATING IN THE EEA

SECTION I

1. 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 personal 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

SECTION II. OBLIGATIONS OF THE PARTIES

CLAUSE 7: 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.

7.1 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.

7.2 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.

7.3 Transparency. On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

7.4 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.

7.5 Duration of Processing, and Erasure or Return of Data. Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

7.6 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.

7.7 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:

(a) 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;

(b) 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;

(c) 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

(d) 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.

7.8 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.

8. CLAUSE 8: 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 four (4) weeks 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 fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

9. CLAUSE 9: 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.

10. CLAUSE 10: 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 data exporter thereby enters into a separate agreement with the data importer, 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.

11. CLAUSE 11: 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.

12. CLAUSE 12: SUPERVISION.

(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

(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

13. CLAUSE 13: 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 shall in each case 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.

14. CLAUSE 14. OBLIGATIONS OF THE DATA IMPORTER IN CASE OF ACCESS BY PUBLIC AUTHORITIES.

14.1 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.

14.2 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

15. CLAUSE 15: 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.

16. CLAUSE 16: GOVERNING LAW.

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland.

17. CLAUSE 17: 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 the EU Member State in which the data exporter is established.

(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.

ANNEX I to the EEA SCCs: PARTICULARS OF THE TRANSFER

A. List of Parties

Data exporterThe Customer, as set out in Annex 1 to the DPA.
Data importerThe Provider, as set out in Annex 1 to the DPA.

B. Description of Transfer.

Categories of Data Subjects- Customers and clients (including their staff)
- Suppliers (including their staff)
- Shareholders
- Relatives, guardians and associates of the data subject
- Advisers, consultants and other professional experts
- Patients
Categories of DataThe Customer may provide documents containing, some or all of the following, in connection with its access to the Services:

- Personal details, including any information that identifies the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description.
- Personal details issued as an identifier by a public authority, including passport details, national insurance numbers, identity card numbers, driving licence details.
- Family, lifestyle and social circumstances, including any information relating to the family of the data subject and the data subject’s lifestyle and social circumstances, including current marriage and partnerships, details of family and other household members, and housing.
- Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualifications, skills, training records, professional expertise, student and pupil records.
- Employment details, including information relating to the employment of the data subject, including employment and career history, recruitment and termination details, attendance records, health and safety records, performance appraisals, training records, and security records.
- Financial details, including information relating to the financial affairs of the data subject, including income, salary, assets and investments, payments, creditworthiness, loans, benefits, grants, insurance details, and pension information.
- Goods or services provided and related information, including details of the goods or services supplied, licences issued, and contracts.
Sensitive DataHealth
Frequency of TransferContinuous for the term of the Agreement.
Nature of ProcessingStoring, copying, accessing, sharing, modifying.
Purposes of the TransferThe provision of services by data importer to data exporter.
Processing Operations- Receiving data, including collection, accessing, retrieval, recording, and data entry
- Holding data, including storage, organisation and structuring
- Using data, including analysing, consultation, testing, automated decision making and profiling
- Updating data, including correcting, adaptation, alteration, alignment and combination
- Protecting data, including restricting, encrypting, and security testing
- Sharing data, including disclosure, dissemination, allowing access or otherwise making available
- Returning data to the data exporter or data subject
- Erasing data, including destruction and deletion
Data RetentionData importer will delete the personal data from its systems on expiry or termination of the services in accordance with its usual data retention practices

C. Competent Supervisory Authority.

The competent supervisory authority is as set out in the Personal Data Attachment, or if none has been set out, the authority competent at the location of the data exporter’s main establishment in the EEA.

ANNEX II to the EEA SCCs: SECURITY MEASURES

As set out in Annex 5 to DPA.

ANNEX 4 to DPA: UK STANDARD CONTRACTUAL CLAUSES Transfers of Personal Data Originating in the UK

1. Definitions.

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘Commissioner’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such UK GDPR;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;

(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the UK;

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

2. Details of the Transfer.

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

3. Third-Party Beneficiary Clause.

(a) The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

(b) The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

(c) The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

(d) The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

4. Obligations of the Data Exporter.

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the Commissioner) and does not violate applicable data protection law;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not covered by adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the Commissioner if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

5. Obligations of the Data Importer.

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the Commissioner with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the Commissioner;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

6. Liability.

(1) The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

(2) If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

(3) If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

7. Mediation and Jurisdiction.

(1) The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject.

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the Commissioner;

(b) to refer the dispute to the UK courts.

(2) The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

8. Cooperation with Supervisory Authorities.

(1) The data exporter agrees to deposit a copy of this contract with the Commissioner if it so requests or if such deposit is required under the applicable data protection law.

(2) The parties agree that the Commissioner has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

(3) The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

9. Governing Law.

The Clauses shall be governed by the law of the country of the United Kingdom in which the data exporter is established, namely England and Wales.

10. Variation of the Contract.

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from (i) making changes permitted by Paragraph 7(3) and (4) of Schedule 21 Data Protection Act 2018; or (ii) adding clauses on business related issues where required as long as they do not contradict the Clause.

11. Sub-Processing.

(1) The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

(2) The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

(3) The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the laws of the country of the UK where the exporter is established.

(4) The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the Commissioner.

12. Obligation after Termination.

(1) The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

(2) The data importer and the sub-processor warrant that upon request of the data exporter and/or of the Commissioner, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

APPENDIX 1 to the EEA SCCs: DETAILS OF THE TRANSFER

Data exporterThe Customer, as set out in Annex 1 to the DPA.
Data importerThe Provider, as set out in Annex 1 to the DPA.
Categories of Data Subjects- customers and clients (including their staff)
- suppliers (including their staff)
- shareholders
- relatives, guardians and associates of the data subject
- advisers, consultants and other professional experts
- patients
Categories of DataThe Customer may provide documents containing, some or all of the following, in connection with its access to the Services:

- Personal details, including any information that identifies the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description.
- Personal details issued as an identifier by a public authority, including passport details, national insurance numbers, identity card numbers, driving licence details.
- Family, lifestyle and social circumstances, including any information relating to the family of the data subject and the data subject’s lifestyle and social circumstances, including current marriage and partnerships, details of family and other household members, and housing.
- Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualifications, skills, training records, professional expertise, student and pupil records.
- Employment details, including information relating to the employment of the data subject, including employment and career history, recruitment and termination details, attendance records, health and safety records, performance appraisals, training records, and security records.
- Financial details, including information relating to the financial affairs of the data subject, including income, salary, assets and investments, payments, creditworthiness, loans, benefits, grants, insurance details, and pension information.
- Goods or services provided and related information, including details of the goods or services supplied, licences issued, and contracts.
Special categories of dataHealth
Processing OperationsStoring, copying, accessing, sharing, modifying.

APPENDIX 2 to the EEA SCCs: ECURITY MEASURES

As set out in Annex 5 to DPA.

ANNEX 5 to DPA: SECURITY MEASURES

  1. Organizational management and dedicated staff responsible for the development, implementation and maintenance of the Provider’s information security program.
  2. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Provider’s organization, monitoring and maintaining compliance with the Provider’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
  3. Data security controls which include, at a minimum, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available industry standard encryption technologies for Personal Data that is transmitted over public networks (i.e. the Internet) or when transmitted wirelessly or at rest or stored on portable media (i.e. laptop computers).
  4. Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know and least privilege basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
  5. Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that the Provider’s passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on the Provider’s computer systems; (iii) must have defined complexity; and (iv) newly issued passwords must be changed after first use.
  6. System audit or event logging and related monitoring procedures to proactively record user access and system activity.
  7. Physical and environmental security of data centers, server room facilities and other areas containing Personal Data designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of the Provider’s facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
  8. Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from the Provider’s possession.
  9. Change management procedures and tracking mechanisms designed to test, approve and monitor all material changes to the Provider’s technology and information assets.
  10. Incident management procedures design to allow Provider to investigate, respond to, mitigate and notify of events related to the Provider’s technology and information assets.
  11. Network security controls designed to protect systems from intrusion and limit the scope of any successful attack.
  12. Vulnerability assessment, patch management and threat protection technologies, and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
  13. Disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergencies or disasters.