This Data Protection Addendum(“Addendum” or “DPA”) forms part of the Master Subscription Agreement (the “MSA”) entered into by The One Champion, LLC, as the Processor, and the “Customer” under the MSA, acting on its own behalf and as agent for each Company Affiliate, as the Controller.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the MSA, or, when not defined in the MSA, the meaning given to them under the GDPR. Except as modified below, the terms of the MSA shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the MSA. Except where the context requires otherwise, references in this Addendum to the MSA are to the MSA as amended by, and including, this Addendum.
1.Definitions
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “The One Champion” means The One Champion, LLC.
1.1.2 “Company” means the Company described in the Order Form submitted by such Company to The One Champion and referred to in the MSA as the “Customer.”
1.1.3 “Company Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise; provided such is not a competitor of The One Champion;
1.1.4 “Company Group Member” means Company or any Company Affiliate;
1.1.5 “Contracted Processor” means The One Champion or a Subprocessor;
1.1.6 “Controller” means the entity which determines the purpose and means of the Processing of Personal Data.
1.1.7 “Data Protection Laws” means all data protection and privacy laws and regulations, including laws applicable to Europe, such as (i) the GDPR, (ii) Directive 2002/58/EC concerning the processing of personal data and protection of privacy in electronic communications,(iii) applicable national implementations of (i) and (ii), and (iv) the UK GDPR and Swiss DPA, applicable to the Processing of Personal Data under the MSA;
1.1.8 “Data Subject” means the identified or identifiable person to whom Personal Data relates.
1.1.9 “EEA” means the European Economic Area;
1.1.10 “EU” means European Union;
1.1.11 “GDPR” means EU General Data Protection Regulation 2016/679 approved by the EU Parliament in April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data.
1.1.12 “Personal Data” means any information relating to an identified or identifiable natural person.
1.1.13 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed.
1.1.14 “Processing” or “Processed” means any operation or set of operations which is performed on Personal Data, whether or not by automatic 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.
1.1.15 “Processor” means the entity which Processes Personal Data on behalf of the Controller.
1.1.16 “Restricted Transfer” means:
1.1.16.1 a transfer of Personal Data from any Company Group Member to a Contracted Processor; or
1.1.16.2 an onward transfer of Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses set forth in Annex IV;
1.1.16.3 For the avoidance of doubt: (a) without limitation to the generality of the foregoing, the parties to this Addendum intend that transfers of Personal Data from the UK to the EEA or from the EEA to the UK, following the exit by the UK from the EU shall be Restricted Transfers for such time and to such extent that such transfers would be prohibited by Data Protection Laws of the UK in the absence of the Standard Contractual Clauses to be established under section 12; and (b) where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from within the EU to a country (such as Switzerland) or scheme which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;
1.1.17 “Sensitive Personal Data” means Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or genetic data or biometric data for the purpose of uniquely identifying a natural person, Personal Data concerning a person’s health, sex life, or sexual orientation, or data relating to criminal convictions and offenses.
1.1.18 “Services” means the services and other activities to be supplied to or carried out by or on behalf of The One Champion for Company Group Members pursuant to the MSA;
1.1.19 “Standard Contractual Clauses” means the contractual clauses set out in Annex IV, amended as indicated (in square brackets and italics) in that Annex IV and under section 13.4;
1.1.20 “Subprocessor” means any person (including any third party, but excluding an employee of The One Champion or any of its sub-contractors) appointed by or on behalf of The One Champion to Process Personal Data on behalf of any Company Group Member in connection with the MSA;
1.1.21 “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR;
1.1.22 “Swiss DPA” means the Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance.
1.1.23 “UK GDPR” means the GDPR as it forms part of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act of 2018; and
1.2 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Limitation on Liability
2.1 The One Champion’s, Company’s, and all Company Affiliates’ liability, taken together in the aggregate, arising out of or related to this Addendum, whether in contract, tort or under any other theory of liability, is subject to any and all limitations on liability set forth in the MSA, and any reference in the MSA to the liability of a party means the aggregate liability of that party and all of its Affiliates under the MSA and this Addendum together.
2.2 For the avoidance of doubt, The One Champion’s total liability for all claims from the Company Group Members arising out of or related to the MSA and this Addendum shall apply in the aggregate for all claims under both the MSA and the Addendum and, in particular, shall not be understood to apply individually or severally to Company and/or to any Company Affiliate.
3. Processing of Personal Data
3.1 The One Champion shall not Process Personal Data other than on the relevant Company Group Member’s documented instructions unless Processing is required by the Data Protection Laws to which the relevant Contracted Processor is subject, in which case The One Champion shall to the extent permitted by Data Protection Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Company Group Member:
3.2.1 Instructs The One Champion (and authorizes The One Champion to instruct each Subprocessor) to:
3.2.1.1 Process Personal Data; and
3.2.1.2 In particular, transfer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the MSA; and
3.2.2 Warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 3.2.1 on behalf of each relevant Company Affiliate;
3.2.3 Warrants and represents that it will maintain compliance with all Data Protection Laws; and
3.2.4 Warrants and represents that it does not and will not Process, or cause the Processing of, Sensitive Personal Data or other high risk Personal Data, such as credit card information, social security numbers, medical records, or criminal records in relation to the Services.
3.3 Annex I to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Personal Data as required by Article 28(3) of the GDPR. Company may make reasonable amendments to Annex I by written notice to The One Champion from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex I (including as amended pursuant to this section 3.3) confers any right on any party to this Addendum.
4. The One Champion Personnel
The One Champion shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the MSA, and to comply with Data Protection Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security
5.1 The One Champion’s technical and administrative safeguards for the protection of the security, confidentiality and integrity of Personal Data are set out in Annex II of the Standard Contractual Clauses included herein as Annex IV.
5.2 Assessing the appropriate level of security, The One Champion and the Company Group shall take account the risks that are presented by Processing, in particular from a Personal Data Breach. The parties acknowledge that such assessment relies, in large part, on the information provided in Annex I, including without limitation, the Company’s agreement that no Sensitive Personal Data and no high risk Personal Data will be submitted for Processing.
6. Subprocessing
6.1 Each Company Group Member authorizes The One Champion to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the MSA.
6.2 The One Champion may continue to use those Subprocessors set forth in Annex III.
6.3 The One Champion shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within seven (7) days of receipt of that notice, Company notifies The One Champion in writing of any objections (on reasonable grounds) to the proposed appointment, then The One Champion shall not appoint (nor disclose any Personal Data to) the proposed Subprocessor except with the prior written consent of Company.
6.4 With respect to each Subprocessor, The One Champion shall:
6.4.1 Before the Subprocessor first Processes Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by the MSA;
6.4.2 Ensure that the arrangement between on the one hand (a) The One Champion or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this Addendum and meet the requirements of Article 28(3) of the GDPR; and
6.4.3 Provide to Company for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may request from time to time.
6.5 The One Champion shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5.1, 5.2, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of The One Champion.
7. Data Subject Rights
7.1 To the extent Company, in its use or receipt of the Services, does not have the ability to correct, amend, block or delete Personal Data, as required by Data Protection Laws, The One Champion shall comply with any commercially reasonable request by Company to facilitate such actions to the extent The One Champion is legally permitted to do so.
7.2 The One Champion shall:
7.2.1 Promptly notify Company if any Contracted Processor receives a request from a Data Subject for access to, correction, amendment or deletion of that person’s Personal Data; and
7.2.2 Ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Data Protection Laws to which the Contracted Processor is subject, in which case The One Champion shall, to the extent permitted by Data Protection Laws, inform Company of that legal requirement before the Contracted Processor responds to the request.
7.3 Company acknowledges and agrees that services provided by a Contracted Processor to a Company Group Member pursuant to this section 7 may be subject to additional fees.
8. Personal Data Breach
8.1 The One Champion shall notify Company without undue delay after becoming aware of a Personal Data Breach affecting Personal Data. Such notification shall at a minimum:
8.1.1 Describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories of Personal Data records concerned; and
8.1.2 Provide the name and contact information of The One Champion’s data protection officer or other relevant contact from whom more information may be obtained.
8.2 The One Champion shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach and as reasonably necessary to assist the Company in fulfilling the Company Group Member’s reporting obligations under Articles 33 and 34 of the GDPR.
9. Data Protection Impact Assessment and Prior Consultation
Upon a Company Group Member’s request, The One Champion shall provide such Company Group Member with reasonable cooperation and assistance needed to fulfill the Company Group Member’s obligation under Article 35 of the GDPR to carry out a data protection impact assessments related to the Company Group Member’s use of the Services, to the extent the Company Group Member does not have access to the relevant information, and to the extent such information is available to The One Champion. The One Champion shall assist a Company Group Member in the cooperation or prior consultation with the Supervisory Authority as reasonably necessary to fulfill the Company Group Member’s obligation under Article 36 of the GDPR. Company acknowledges and agrees that services provided by a Contracted Processor to a Company Group Member pursuant to this section 9 may be subject to additional fees.
10. Deletion or return of Personal Data
10.1 Subject to section 10.3, Company may in its absolute discretion by written notice to The One Champion, within thirty (30) days of the date of cessation of any Services involving the Processing of Personal Data (the “Cessation Date”), require The One Champion to (a) return a complete copy of all Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to The One Champion; and (b) delete and procure the deletion of all other copies of Personal Data Processed by any Contracted Processor. The One Champion shall comply with any such written request from Company within sixty (60) days of the Cessation Date.
10.2 Subject to section 10.3, in the event Company does not provide written notice to The One Champion under section 10.1 within the required thirty days, The One Champion shall, within sixty (60) days of the Cessation Date, delete and procure the deletion of all copies of Personal Data Processed by any Contracted Processor.
10.3 Each Contracted Processor may retain Personal Data to the extent required by Data Protection Laws and only to the extent and for such period as required by Data Protection Laws and always provided that The One Champion shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the Data Protection Laws requiring its storage and for no other purpose.
10.4 Company may request The One Champion provide written certification to Company that it has fully complied with this section 10, in which case such certification must be supplied within ninety (90) days of the Cessation Date.
11. Audit rights
11.1 Subject to restrictions contained in the MSA, including those contained in this Addendum, The One Champion shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Company Group Member or auditor selected by any Company Group Member and consented to by The One Champion (which consent shall not be unreasonably withheld, conditioned or delayed) in relation to the Processing of the Personal Data by the Contracted Processors.
11.2 Information and audit rights of the Company Group Members only arise under section 11.1 to the extent that the MSA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, Article 28(3)(h) of the GDPR).
11.3 Company or the relevant Company Affiliate undertaking an audit shall give The One Champion reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its selected auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize, and compensate The One Champion for) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on such premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
11.3.1 To any individual unless he or she produces reasonable evidence of identity and authority;
11.3.2 Outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiliate undertaking an audit has given notice to The One Champion that this is the case before attendance outside those hours begins; or11.3.2 Outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiliate undertaking an audit has given notice to The One Champion that this is the case before attendance outside those hours begins; or
11.3.3 For the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which a Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,
where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to The One Champion of the audit or inspection.
12. Restricted Transfers
12.1 Subject to section 12.3, each Company Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.
12.2 The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
12.2.1 The data exporter becoming a party to them;
12.2.2 The data importer becoming a party to them; and
12.2.3 Commencement of the relevant Restricted Transfer.
12.3Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
13. General Terms
Governing law and jurisdiction
13.1 Without prejudice to clauses 13 (Supervision), 17 (Governing law), and 18 (Choice of forum and jurisdiction) of the Standard Contractual Clauses:
13.1.1 The parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the MSA with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
13.1.2 This Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the MSA.
Order of precedence
13.2 Nothing in this Addendum reduces The One Champion’s obligations under the MSA in relation to the protection of Personal Data or permits The One Champion to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the MSA.
13.3 Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the MSA and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
13.4 With respect to Restricted Transfers only, in the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Changes in Data Protection Laws, etc.
13.5 Company may:
13.5.1 By at least sixty (60) calendar days’ written notice to The One Champion from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
13.5.2 Propose any other variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
13.6 If Company gives notice under section 13.5.1, Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by The One Champion to protect the Contracted Processors against additional risks associated with the variations made under section 13.5.1.
13.7 If Company gives notice under section 13.5.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company’s notice as soon as is reasonably practicable.
13.8 Neither Company nor The One Champion shall require the consent or approval of any Company Affiliate to amend this Addendum pursuant to this section 13.6 or otherwise.
Severance
13.9 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
14. Additional Terms for Processor-to-Processor Transfers
14.1 To the extent a Company Group Member acts as a Processor, such Company Group Member hereby represents and warrants that its use of The One Champion as a Processor/Subprocessor and its Processing instructions to The One Champion, including the authorization for The One Champion’s appointment of Subprocessors in accordance with this Addendum, have been authorized by the relevant Controller. The Company Group shall be solely responsible for forwarding any notifications received from The One Champion to the relevant Controller where appropriate.
14.2 For purposes of Clause 8.6(c) and (d) of the Standard Contractual Clauses, The One Champion shall provide notification of a personal data breach concerning Personal Data Processed by The One Champion to the Company, who shall be responsible for ensuring notification is forwarded to the relevant Controller.
14.3 For purposes of Clause 8.9 of the Standard Contractual Clauses, all inquiries from the Relevant Controller shall be provided to The One Champion by the Company. If The One Champion receives an inquiry directly from a Controller for whom a Company Group Member serves as a Processor, The One Champion shall forward the inquiry to the Company and the Company shall be solely responsible for responding to such inquiry.
14.4 For purposes of Clause 10 of the Standard Contractual Clauses and subject to this section 14, The One Champion shall notify the Company about any request The One Champion has received directly from a Data Subject without obligation to handle it (unless otherwise agreed), but The One Champion shall not be required to notify the relevant Controller, such notification being the sole responsibility of the Company. The Company shall be solely responsible for cooperating with the relevant Controller in fulfilling the relevant obligations to respond to any such request.
ANNEX 1: DETAILS OF PROCESSING
This Annex forms part of the Data Protection Agreement (the “DPA” or this “Addendum”) and serves as an Appendix (Annex I) to the Standard Contractual Clauses. Capitalized terms used in this Annex and not defined herein have the meaning ascribed to them in the DPA.
A. LIST OF PARTIES
Data exporter(s):
Name: The Company described in the Order Form submitted by such Company to The One Champion (the “Order Form”) and referred to in the MSA as the Customer (on behalf of itself and its Company Affiliates).
Address: The Company’s address, as set forth in the Order Form.
Contact person’s name, position, and contact details: The Company’s contact details, as set forth in the Order Form and/or set forth in the Company’s The One Champion account.
Activities relevant to data transferred under the Standard Contractual Clauses: Restricted Transfers in connection with a Company Group Member’s use of the The One Champion Services under the MSA.
Signature and date: See the Order Form
Role (controller/processor): Controller
Data importer:
Name: The One Champion, LLC
Address: 301 East John Street, Unit 3449, Matthews, NC 28106 USA
Contact person’s name, position, and contact details: Jason Jacobs, Chief Executive Officer, The One Champion, LLC, 301 East John Street, Unit 3449, Matthews, NC 28106 USA
Activities relevant to data transferred under the Standard Contractual Clauses: Restricted Transfers in connection with a Company Group Member’s use of the The One Champion Services under the MSA.
Signature and date: See the Order Form
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of Data Subjects whose Personal Data is transferred
A Company Group Member may submit Personal Data to the Services, the extent of which is determined and controlled by such Company Group Member, which may include, without limitation, Personal Data relating to the following categories of Data Subjects:
1. Company Group Member contacts and other end users, including Company Group Member employees, and employees of channel partners.
2. Individuals attempting to communicate with, or transfer Personal Data to, a Company Group Member’s end users.
Categories of Personal Data Transferred
A Company Group Member may submit Personal Data to the Services, the extent of which is determined and controlled by Company Group Member in its sole discretion, which may include the following types of Personal Data:
1. Contact information (first and last name, company, email, phone, physical business address)
2. Any other Personal Data submitted by, sent to, or received by a Company Group Member or its end users, via the Services, excluding Sensitive Personal Data or other high risk Personal Data.
Sensitive Data Transferred
No SENSITIVE PERSONAL DATA, OR OTHER high risk Personal Data, such as credit card information, social security numbers, medical records, or criminal records may be submitted for Processing. PARTIES ARE PRECLUDED FROM TRANSFERRING SENSITIVE PRESONAL DATA OR OTHER HIGH RISK PERSONAL DATA.
Frequency of the transfer
Continuous
Nature and Purpose of the transfer and Processing of Personal Data
The One Champion will Process Personal Data as necessary to perform the Services pursuant to the MSA, as further specified in the DPA, and instructed by the Company Group Member in use of the Services.
Period for which Personal Data will be retained
Subject to section 10 of the DPA, The One Champion will Process Personal Data for the duration set out in the MSA and the DPA, unless otherwise agreed in writing.
Transfers to Subprocessors
Subprocessors will Process Personal Data as necessary to perform the Services pursuant to the MSA, as further specified in the DPA. Subject to section 10 of the DPA, Subprocessors will Process Personal Data for the duration set out in the MSA and the DPA.
The obligations and rights of Company and Company Affiliates
The obligations and rights of Company and Company Affiliates are set out in the MSA and this Addendum.
C. COMPETENT SUPERVISORY AUTHORITY
For the purpose of the Standard Contractual Clauses:
1. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with the GDPR as regards the data transfer shall act as competent supervisory authority.
2. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of the GDPR in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of the GDPR: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of the GDPR is established shall act as competent supervisory authority.
3. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of the GDPR in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of the GDPR: The Data Protection Commission of the Republic of Ireland shall act as the competent supervisory authority.
4. In relation to Personal Data that is subject to the UK GDPR, the competent supervisory authority is the UK Information Commissioner.
ANNEX 2: SECURITY MEASURES
This Annex forms part of the Data Protection Agreement (the “DPA” or this “Addendum”) and serves as an Appendix (Annex II) to the Standard Contractual Clauses. Capitalized terms used in this Annex and not defined herein have the meaning ascribed to them in the DPA.
The One Champion currently observes the Technical Organizational Measures described in this Annex II.
1. Access Control
1. Preventing Unauthorized Product Access Preventing Unauthorized Product Access
1. Outsourced Processing: The One Champion hosts its Services with outsourced cloud infrastructure providers. Additionally, The One Champion maintains contractual relationships with vendors in order to provide the Service in accordance with the DPA. The One Champion relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.
2. Physical and Environmental Security: The One Champion hosts its product infrastructure with Microsoft Azure, a multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.
3. Authentication: Our product requires authentication via single sign-on or email and password. Customers configure their desired password policy including security parameters such as minimum password length & complexity, maximum password age, enforcing password history, the use of a security challenge question, and account lockout criteria. Customers who interact with the products via the user interface or application programming interface (API) must authenticate before accessing non-public customer data.
4. Authorization: Customer data is stored in multi-tenant storage systems accessible to customers only via application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of The One Champion’s products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
2. Preventing Unauthorized Product Use
1. The One Champion implements industry standard access controls and detection capabilities for the internal networks that support its products.
2. Access Controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include security group assignment and traditional firewall rules.
3. Intrusion detection and prevention: The One Champion implements a Web Application Firewall (WAF) solution to protect hosted customer websites and other internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services.
4. Penetration Testing: The One Champion maintains relationships with third-party penetration testing service providers for annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.
3. Limitations of Privilege & Authorization Requirements
1. Product Access: The One Champion employees have access to the products and customer data via controlled interfaces. The intent is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Access requests are logged. Employees are granted access by role. Employee roles are reviewed at least once annually.
2. Background Checks: All The One Champion employees undergo a third-party background check prior to being extended an offer of employment, in accordance with, and as permitted by applicable laws. All The One Champion employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.
2. Transmission Control
1. In-Transit: All application interfaces are only available via a secure HTTPS connection that uses SSL or TLS to encrypt communications. The One Champion’s HTTPS implementation uses industry standard algorithms and certificates.
2. At-Rest: All customer data is encrypted at rest. The One Champion stores passwords pursuant to policies that follow industry standard practices for security.
3. Input Control
1. Detection: The One Champion designed its infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregate log data and alert appropriate employees of malicious, unintended, or anomalous activities.
2. Response and Tracking: The One Champion maintains a record of known security incidents that includes descriptions, dates, and times of relevant activities, and incident dispositions. Suspected and confirmed security incidents are investigated and appropriate resolution steps are identified and documented. For any confirmed incidents, The One Champion will take appropriate steps to minimize product and customer damage or unauthorized disclosure. Notification to customers will be in accordance with the terms of this Agreement.
4. Availability Control
1. Infrastructure Availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
2. Fault Tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.
3. The One Champion’s products are designed to ensure redundancy. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists The One Champion’s operations in maintaining and updating the product applications and backend while limiting downtime.
ANNEX 3: LIST OF SUB-PROCESSORS
This Annex forms part of the Data Protection Agreement (the “DPA” or this “Addendum”) and serves as an Appendix (Annex III) to the Standard Contractual Clauses. Capitalized terms used in this Annex and not defined herein have the meaning ascribed to them in the DPA.
| Entity Name | Description | Entity Country |
|---|---|---|
| Cloudflare, Inc. | Third-party Service Provider: Provides web application firewall (WAF) services, application intelligence and content delivery network (CDN) services for The One Champion. | United States |
| FreshWorks, Inc. | Third-party Service Provider: Provides support ticketing and knowledge base. | United States |
| Imperva, Inc. | Third-party Service Provider: Provides web application firewall (WAF) services, application intelligence and content delivery network (CDN) services for The One Champion. | United States |
| Localize Corporation | Third-party Service Provider: Provides real-time translation services for The One Champion. | United States |
| Microsoft Inc. | Third-party Service Provider: Provides hosting services for The One Champion. | United States |
| Rustici Software LLC | Third-party Service Provider: Provides learning content hosting and analytics for The One Champion. | United States |
| SendGrid, Inc. | Third-party Service Provider: Provides email sending and delivery services for The One Champion. | United States |
| Sumo Logic, Inc. | Third-party Service Provider: Provides security information and event management (SIEM) services for The One Champion. | United States |
| Unwired Labs (India) Pvt Ltd. (LocationIQ) | Third-party Service Provider: Provides geocoding and location services for The One Champion. | India |
ANNEX 4: STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
1. 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.
2. The Parties:
1. 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
2. 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”)
3. have agreed to these standard contractual clauses (hereinafter: “Clauses”).
4. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
5. 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
1. 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.
2. 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
1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
2. Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
3. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
4. Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
5. Clause 13;
6. Clause 15.1(c), (d) and (e);
7. Clause 16(e);
8. Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
3. 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
Docking clause
1. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
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.
[MODULE ONE: Transfer controller to controller]
8.1 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. It may only process the personal data for another purpose:
8.2 Transparency
1. In order to enable data subjects to effectively exercise their rights pursuant to Clause10, the data importer shall inform them, either directly or through the data exporter:
1. of its identity and contact details;
2. of the categories of personal data processed;
3. of the right to obtain a copy of these Clauses;
4. where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
2. Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
3. On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
4. Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
1. Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
2. If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
3. The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.
8.5 Security of processing
1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including 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, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. 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.
2. The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
3. The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4. 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 personal data breach, including measures to mitigate its possible adverse effects.
5. In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
6. In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
7. The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
The data importer shall not disclose the personal data 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”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
1. Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
2. The data importer shall make such documentation available to the competent supervisory authority on request.
[MODULE TWO: Transfer controller to processor]
8.1 Instructions
1. 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.
2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of 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).
8.6 Security of processing
1. 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.
2. 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.
3. 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.
4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
2. 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.
3. 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.
4. 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.
5. 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.
[MODULE THREE: Transfer processor to processor]
8.1 Instructions
1. The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
2. The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
3. The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
4. The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.
8.5 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 controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
1. 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, they 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 subject. 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 or the controller. 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.
2. The data importer shall grant access to the 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.
3. 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, without undue delay, the data exporter and, where appropriate and feasible, the controller 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 data breach, including 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.
4. 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 its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by 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:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
1. The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
2. 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 controller.
3. The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
4. The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
5. Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
6. 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.
7. 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.
[MODULE FOUR: Transfer processor to controller]
8.1 Instructions
1. The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
2. 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.
3. The 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.
4. 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
1. 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, 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.
2. 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.
3. 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
1. The Parties shall be able to demonstrate compliance with these Clauses.
2. 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
[MODULE TWO: Transfer controller to processor]
1. GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least seven (7) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
2. 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.
3. 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.
4. 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.
5. 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.
[MODULE THREE: Transfer processor to processor]
1. GENERAL WRITTEN AUTHORISATION The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least seven (7) days in advance, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), 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.
3. The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.
4. 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.
5. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
[MODULE ONE: Transfer controller to controller]
1. The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
2. In particular, upon request by the data subject the data importer shall, free of charge :
1. provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
2. rectify inaccurate or incomplete data concerning the data subject;
3. erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
3. Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
4. The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him / her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
1. inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
2. implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
5. Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
6. The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
7. If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
[MODULE TWO: Transfer controller to processor]
1. 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.
2. 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.
3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
[MODULE THREE: Transfer processor to processor]
1. The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
2. The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. 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.
3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.
[MODULE FOUR: Transfer processor to controller]
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
1. 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.
[MODULE ONE: Transfer controller to controller]
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
1. 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.
2. 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:
1. 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;
2. refer the dispute to the competent courts within the meaning of Clause 18.
3. 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.
4. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
5. 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
[MODULE ONE: Transfer controller to controller]
[MODULE FOUR: Transfer processor to controller]
1. 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.
2. 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.
3. 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.
4. 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.
5. The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
[MODULE ONE: Transfer controller to controller]
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
1. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
2. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
[MODULE ONE: Transfer controller to controller]
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
[MODULE FOUR: Transfer processor to controller] (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)
1. 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.
2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
1. 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;
2. 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;
3. 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.
3. 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.
4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
5. 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). [For Module Three: The data exporter shall forward the notification to the controller.]
6. 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 [for Module Three: , if appropriate in consultation with the controller]. 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 [for Module Three: the controller or] 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
[MODULE ONE: Transfer controller to controller]
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
[MODULE FOUR: Transfer processor to controller] (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)
15.1 Notification
1. 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:
1. 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
2. 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.
[For Module Three: The data exporter shall forward the notification to the controller.]
1. 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.
2. 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.). [For Module Three: The data exporter shall forward the information to the controller.]
3. 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.
4. 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
1. 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).
2. 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. [For Module Three: The data exporter shall make the assessment available to the controller.]
3. 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
1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
2. 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).
3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
1. 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;
2. the data importer is in substantial or persistent breach of these Clauses; or
3. 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 [for Module Three: and the controller] 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.
1. [For Modules One, Two and Three: 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.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] 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.
2. 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
[MODULE ONE: Transfer controller to controller]
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland.
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
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.
[MODULE FOUR: Transfer processor to controller]
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 the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
[MODULE ONE: Transfer controller to controller]
[MODULE TWO: Transfer controller to processor]
[MODULE THREE: Transfer processor to processor]
1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
2. The Parties agree that those shall be the courts of the Republic of Ireland.
3. 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.
4. The Parties agree to submit themselves to the jurisdiction of such courts.
[MODULE FOUR: Transfer processor to controller] Any dispute arising from these Clauses shall be resolved by the courts of the Republic of Ireland.