Data Processing Addendum
If and to the extent Juno Processes any Personal Data that is subject to the General Data Protection Regulation and/or the UK GDPR, this DATA PROCESSING ADDENDUM (this “DPA”) shall be incorporated into the MSA (as defined below) and shall govern the parties’ obligations with regard to the Processing of such Personal Data. This DPA consists of the main body of the DPA, together with any and all attached Exhibits, Schedules and Appendices, into which any additional details required shall be inserted as soon as they are known based on the Processing activity to be undertaken. Capitalized terms set forth in this DPA which are not defined shall have the meanings attributed to them under the MSA.
DATA PROCESSING TERMS
- DEFINITIONS
“Customer” has the same meaning ascribed to it in the MSA, or in the event there is no such definition, shall mean the Customer referenced on the signature page hereto.
“Data Controller” means the entity that determines the purpose and means of the Processing of Personal Data.
“Data Processor” means the entity that processes Personal Data on behalf of the Data Controller.
“Data Subject” means an identified or identifiable natural person to whom the Personal Data relates.
“DPA” means this Data Processing Addendum.
“Data Protection Laws” means all laws and regulations applicable to the Processing of Personal Data under the MSA, including, without limitation, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”), and the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”).
“Juno” means Juno Journey Ltd., which has its registered address at 15 Maskit St., Herzeliya, Israel, or such other Juno entity who has entered into the MSA with the Customer, referenced on the signature page hereto.
“MSA” means the Master Services Agreement between Juno and the Customer dated the date this agreement is accepted by the Customer including its annexes, schedules and appendices, and any and all related orders.
“Personal Data” means any information relating to a Data Subject.
“Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of 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.
“Services” means the services provided by Juno to Customer under or in connection with the MSA.
“Standard Contractual Clause” or “SSC” means the applicable module of the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council from June 4th 2021, as available here: https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en.
- PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The parties acknowledge and agree that with respect to the Processing of Personal Data, Customer is the Data Controller and Juno is the Data Processor. Juno shall comply with its obligations under the Data Protection Laws, including (without limitation) maintaining records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws.
2.2 Juno’s Processing of Personal Data. Juno will Process Personal Data only to the extent necessary pursuant to Customer’s instructions and as set forth in the MSA. This includes the Processing of Personal Data for or in connection with:
The provisioning by Juno of certain Juno solutions for Customer’s benefit, and Juno’s performance of services, support and maintenance in respect of any Juno solution utilized by Customer.
2.3 Type of Data. The Processing of Personal Data within the scope of this DPA pertains to the Personal Data which Customer may submit via the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following data types/data categories of Personal Data:
- First and last name
- Email address
- Phone number
- Profile photo
- Job title; department; manager
- office location
- Professional Profile (skills, competencies)
2.4 Affected Group. The group of Data Subjects affected by the Processing of Personal Data within the scope of this DPA includes: Customer’s employees, advisors, and consultants, all of whom are natural persons.
2.5 Data transfers outside UK/EU/EEA. In the event the Services involve the Processing of Controller Personal Data from the EEA or from the United Kingdom (“UK”), such transfer of Customer’s Personal Data to other countries shall be subject to (i) Adequacy Decisions on the basis of Article 45 of GDPR, as updated by the European Commission from time to time; (ii) exemptions under Article 49 of the GDPR; or (iii) the Standard Contractual Clauses, which shall be implemented as follows:
- In the case of transfer of Personal Data between Customer to Company, the parties shall implement Module II of the Standard Contractual Clauses, attached hereto as Exhibit 2, in which case Company shall be deemed as a “Data Importer” and Customer shall be deemed as a “Data Exporter” (the description of transfer, the technical security measures shall be detailed in Annex I and Annex II attached therein). If the Standard Contractual Clauses are no longer effective as an appropriate safeguard under Data Protection Laws, the parties agree to work in good faith to promptly agree upon alternate appropriate safeguards.
- In the case of transfer of Personal Data between Company and its Sub-Processor for the purposes of carrying out specific Processing activities (on behalf of Customer) in accordance with Section 7, the Company and the Sub-Processor will enter into Module III of the Standard Contractual Clauses. For the purpose of such engagement, Company shall be deemed as the Data Exporter and the Sub-Processor shall be deemed as the Data Importer.
- If the applicable Data Exporter under 2.5(a) or 2.5(b) is transferring Personal Data governed by the UK GDPR, the parties will negotiate in good faith and make the required amendments in accordance with the instruction of UK’s Information Commissioner’s Office (“ICO”), as available here or as amended and/or replaced by the ICO.
- TERM AND TERMINATION
The term of this DPA, including its Exhibit, corresponds with the term of the MSA. The DPA, including its Exhibit, will terminate simultaneously and automatically with the termination of the MSA.
- TECHNICAL AND ORGANISATIONAL MEASURES
Juno implements and maintains the technical and organizational data protection and data security measures described in Exhibit 1 and shall protect the Personal Data by such measures, including to protect the Personal Data against the risks of a security breach. Juno shall, without undue delay (and in any event within 24 hours) after discovering any security breach or any failure or defect in security which leads, or might reasonably be expected to lead, to a security breach, notify Customer.
The technical and organizational measures are subject to technological progress and advancements. As such, Juno may implement alternative, adequate measures which meet or exceed the security level of the measures described in Exhibit 1.
- CORRECTION, BLOCKING AND DELETION OF PERSONAL DATA
Juno shall, to the extent legally permitted, without undue delay and in any event within 72 hours notify Customer if Juno receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure, data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Juno shall, at Customer’s costs, assist and cooperate with Customer in the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws.
- CONTROL OBLIGATIONS AND OTHER DUTIES OF JUNO
In addition to its other obligations under this DPA, Juno shall also carry out the following duties:
- Ensure that all employees of Juno who have access to Personal Data within the scope of this DPA have undertaken to or are otherwise required to comply with the principle of data secrecy.
- Monitor the proper implementation, fulfilment and execution of this DPA by means of regular inspections carried out by Juno;
- Ensure that Customer can verify the implementation and maintenance of the technical and organizational measures.
- Upon Customer’s request, Juno shall provide, at Customer’s costs, Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under Regulation (EU) 2016/679 and/or UK GDPR to carry out a data protection impact assessment related to Customer’s use of the Services. Juno shall, at Customer’s costs, provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks described above.
- SUBPROCESSORS
7.1 Juno may engage sub-processors to Process Personal Data in connection with the provision of the Services, including without limitation Juno affiliates.
7.2 Juno shall carefully select the sub-processors and shall, prior to the commencement of any sub-processing and in regular intervals thereafter, audit the technical and organizational measures taken by the sub-processors and document the findings.
7.3 A complete list of sub-processors can be found https://junojourney.com/legal/subprocessors. Changes made to this list shall be communicated in accordance with the terms and conditions included herein and the MSA.
7.4 Customer may reasonably object to Juno’s use of a new sub-processor by notifying Juno promptly in writing within ten (10) business days after receipt of Juno‘s notice. In its notification, Customer shall explain its reasonable grounds for objection. In the event Customer objects to a new sub-processor, Juno will use commercially reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new sub-processor without unreasonably burdening Customer. If Juno is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, either party may terminate without penalty the MSA.
7.5 Where Juno engages a sub-processor, Juno shall be obliged to pass on its contractual obligations under this DPA to the sub-processor and secure audit and monitoring rights as set forth in Section 8 for Customer’s benefit in a written contract. Notwithstanding the appointment of any sub-processor, Juno is responsible and liable to the Customer for, and shall indemnify the Customer against, any processing by any sub-processor in breach of this DPA, the Agreement or Data Protection Laws.
- CUSTOMER’S MONITORING RIGHTS
8.1 Customer may monitor Juno’s compliance of its obligations under this DPA by itself or by a certified auditor. Juno will ensure that Customer has the ability to assure itself of Juno’s adherence to the stipulated technical and organizational measures prior to the commencement of the Processing activities and during the term of this DPA. For this purpose, Juno will, upon Customer’s request, provide Customer with evidence that the technical and organizational measures described in Exhibit 1 have been implemented. Without limiting the generality of the foregoing, Customer acknowledges and agrees that it may not carry out more than one (1) audit during any twelve (12) month period, unless Customer is aware of, or has a good faith reason to believe that, a violation of this DPA by Juno has occurred in respect of the Personal Data being Processed by Juno.
8.2 Alternatively, Juno may satisfy its obligations under this Section 8 by presenting current attestations, reports, or excerpts of reports from independent authorities (such as accountants, auditors, data privacy officer, IT security department, data protection auditors or quality auditors) or a suitable certification received within the scope of an IT security or data protection audit (such as pursuant to the German Federal Office for Information Security’s “IT-Grundschutz” Certification Program or pursuant to Art. 42 Regulation (EU) 2016/679).
- NOTIFICATION IN THE EVENT OF VIOLATIONS BY JUNO
Juno shall notify Customer in case of violations by Juno or its employees of provisions to protect the Personal Data transmitted to it by Customer or in case of violations of the terms of this DPA, including any complaint, notice or communication from a relevant regulator or other third party.
Juno shall notify Customer of any loss or unlawful transfer of Personal Data or when third parties gain access to the Personal Data. This also applies in the event of severe disruptions to business operations or in the event of reasonable suspicion of other violations of Data Protection Laws. In such cases, Juno shall undertake, suitable measures, in consultation with Customer, to secure the data and to minimize possible harmful consequences to the Data Subjects affected.
- CALIFORNIA PRIVACY
Juno shall comply with all applicable requirements set forth in the CCPA in its capacity as a service provider, as defined under the CCPA. The exchange of Personal Data hereunder does not constitute a sale, as defined by the CCPA. As such, Juno is prohibited from processing (including retaining, using and disclosing) Personal Data (i) for any purpose other than performing its obligations hereunder; or (ii) outside of the direct business relationship with Customer. Juno shall ensure that it and any vendor or partner it engages to help perform its obligations hereunder will not, directly or indirectly, make available Personal Data for any valuable consideration (monetary or otherwise). Juno hereby certifies it understands the undertakings and restrictions set out in this Section 10.
- CUSTOMER’S AUTHORITY TO ISSUE INSTRUCTIONS
Customer reserves the right to issue individual instructions regarding the type, scope, and method of Processing. Methodological changes must be coordinated between the parties and documented. Juno shall inform Customer immediately if it believes that an instruction violates any Data Protection Laws.
- DATA DELETION AND RETURN OF DATA STORAGE DEVICES
After completion of the contractually agreed services (or earlier at the Customer’s request) – at the latest upon termination of the DPA – Juno shall transfer to Customer all Personal Data received or created within the scope of this DPA or destroy the Personal Data in accordance with applicable Data Protection Laws. Upon request, Juno shall present the deletion logs to Customer.
Documentation materials that serve as evidence that Personal Data was processed in a proper manner consistent with the stipulations of this DPA may be stored by Juno after termination of this DPA in accordance with the applicable retention periods and the terms of this DPA.
Notwithstanding anything to the contrary above, the requirements set forth under this Section 12 shall not apply to the extent that Juno is required by any applicable law to retain some or all of the Customer Personal Data, Juno may also retain one copy of the Customer’s Personal Data solely for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or for compliance with legal obligations in which case Juno shall isolate and protect such Customer Personal Data from any further Processing except to the extent required for such purpose.
- GOVERNING LAW
This DPA shall be governed by the laws of same jurisdiction as agreed in the MSA
EXHIBIT 1
Technical and Organizational Measures
Juno engages a qualified, independent third-party security firm to perform annual penetration testing in accordance with industry-standard methodology, reasonably designed to identify any publicly known or reasonably foreseeable or detectable threats and vulnerabilities that reasonably could compromise the security, confidentiality, integrity or availability of information maintained on Juno’s information systems.
Juno maintains and implements a comprehensive written information security program, which shall include administrative, technical and physical safeguards to protect Personal Data that are no less rigorous than accepted industry practices appropriate to the type and nature of its services, designed to: (i) ensure the security and confidentiality of personal data; (ii) protect against any anticipated threats or hazards to the security and integrity of personal data; and (iii) protect against any actual or suspected unauthorized Processing, loss, use, disclosure or acquisition of or access to any Personal Data.
EXHIBIT 2
EU Standard Contractual Clauses (Module 2: Controller-to-Processor)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation:
The entity identified as “Customer” and “Controller” in the DPA and any Affiliate of Controller
(the data exporter)
And
The entity identified as “Company” and “Processor” in the DPA and any Processor Affiliate or Sub Processor (as defined in the DPA) for whom Processor is authorized as an agent to enter these Standard Contractual Clauses
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in the Appendix.
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.
(b) The Parties:
- 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
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- 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);
- Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
- Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 -Optional
Docking Clause
(a) 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.
(b) 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.
(c) 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 TWO: Transfer controller to processor
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of noncompliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of Sub-processors
MODULE TWO: Transfer controller to processor
(a) 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 thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a subprocessor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the subprocessor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data Subject Rights
MODULE TWO: Transfer controller to processor
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
MODULE TWO: Transfer controller to processor
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to: (i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13; (ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
MODULE TWO: Transfer controller to processor
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
MODULE TWO: Transfer controller to processor
(a) The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- 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;
- 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 safeguards12;
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in the case of access by public authorities
MODULE TWO: Transfer controller to processor
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- 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
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- 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;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses. In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing Law
MODULE TWO: Transfer controller 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 Ireland.
Clause 18
Choice of Forum and jurisdiction
MODULE TWO: Transfer controller to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Dublin, Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX to the Standard Contractual Clauses
ANNEX I
- LIST OF PARTIES
MODULE TWO: Transfer controller to processor
Data exporter(s): The data exporter is the entity identified as “Controller” in the DPA, and each Affiliate of Controller.
Data importer(s): The data importer is the entity identified as “Processor” in the DPA, or a Processor Affiliate or authorized Sub Processor (as defined in the DPA) for whom Processor is authorized as an agent to enter these Standard Contractual Clauses.
- DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
Categories of data subjects whose personal data is transferred.
The personal data transferred concern the categories of data subject set forth in Section 2.4 of the DPA under the header “Affected Group”.
Categories of personal data transferred.
The personal data transferred concern the categories of data set forth in Section 2.4 of the DPA under the header “Type of Data”
Sensitive data transferred.
Not applicable to the Services provided pursuant to the Agreement.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
The frequency of the transfer shall be on a continuous basis as necessary to perform the obligations of the Agreement (as defined in the DPA).
Nature of the processing; Purpose(s) of the data transfer and further processing
The processing operations shall be in accordance with Section 2.2 in the DPA.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The personal data will be retained solely for as long as necessary to complete any processing necessary to provide the Services under the applicable Agreement (as defined as in the DPA).
For transfers to Sub-processors, also specify subject matter, nature and duration of the processing
As set forth in section 7 of the DPA and including, without limitation, Exhibit B attached to the DPA.
……………………..
- COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
Identify the competent supervisory authority/ies in accordance with Clause 13
The United Kingdom, as to data subjects of the United Kingdom (UK) and UK GDPR, and Ireland, as to data subjects of the European Economic Area (EEA) and GDPR.
ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE TWO: Transfer controller to processor
As set forth under Exhibit 1 in the DPA.