Data Processing Addendum

Date: MARCH 2, 2022

This Data Processing Addendum (“DPA”) is incorporated by reference and forms an integral part of the software as a service (“SaaS”) agreement for the Subscription Services (commonly referred to as master subscription agreement, freemium subscription agreement and services agreement) and all related orders for Subscription Services between and Birch Grove Software, Inc. d/b/a ActivTrak (“ActivTrak”) and Customer (as defined below) (the “Agreement”). This DPA governs the Processing of Personal Data in connection with provision of Subscription Services under the Agreement and any applicable order form, sales order or similar transaction document (each an “Ordering Document”). ActivTrak and Customer may be referred to in this DPA individually as a “Party” and collectively as the “Parties.” This DPA becomes effective as of the date of the Agreement (“DPA Effective Date”).

By signing the Agreement, the Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Law, on behalf of its Authorized Affiliates, if and to the extent ActivTrak processes Personal Data of Authorized Affiliates for which such Authorized Affiliates qualify as Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include the Customer entity executing the Agreement and all Customer’s Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement or applicable Ordering Document.

HOW TO EXECUTE THIS DPA

This DPA consists of this cover page and the Data Processing Terms, including Schedules 1 and 2 (with appendices 1 to 3). Customer represents and warrants to ActivTrak that Customer, and any representative of Customer executing this DPA on its behalf, is fully authorized to legally bind Customer and any applicable Customer Authorized Affiliates to this DPA. Customer and ActivTrak acknowledge and agree that execution of the Agreement, whether by click-through or electronic or web-based acceptance of terms, shall constitute Customer’s and ActivTrak’s acceptance of this DPA.

HOW THIS DPA APPLIES

This DPA becomes a legally binding document, fully incorporated by reference as an addendum to the Agreement, once the Customer executes the Agreement, click-through or electronic or web-based acceptance of terms, pursuant to the section “How to Execute this DPA.”

DATA PROCESSING TERMS

In the course of providing the Services to Customer pursuant to the Agreement, ActivTrak may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data.

  1. DEFINITIONS.

    Adequate Country” means, for a jurisdiction with Data Protection Laws that restrict data transfers, a country that such jurisdiction recognizes as providing an adequate level of privacy and data protection as required by such jurisdiction’s Data Protection Laws.

    Affiliate” has the same meaning ascribed in the Agreement.

    Authorized Affiliate” means any of Customer’s Affiliates authorized to use the Services by Customer.

    CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

    Controller” means the entity which determines the purposes and means of the Processing of Personal Data, including, as applicable, a “business,” “controller,” “data owner,” and other similar terms under Data Protection Laws that refer to persons or entities that determine the purposes and means of the processing of Personal Data.

    Customer” means the non-ActivTrak party that executed the Agreement and together with its Authorized Affiliates (for so long as they remain Affiliates), which have signed an Ordering Document.

    Data Protection Laws” means all applicable federal or state laws and regulations, including EU Data Protection Laws and the UK GDPR, that: (a) relate to the confidentiality, processing, privacy, security, protection, transfer or trans-border data flow of Personal Data; (b) relate to the privacy or
    interception, recording or monitoring of communications; (c) provide rights to an individual whose Personal Data is being processed; or (d) that trigger a duty to notify an individual whose Personal Data has been, or may have been, the subject of a Personal Data Breach. To the extent the term “Law” and/or “Applicable Law” is defined in the Agreement, the Parties agree that Data Protection Laws shall be
    included in such definition.

    Data Subject” means the identified or identifiable person to whom Personal Data relates.

    EU Data Protection Laws” means the Data Protection Laws in the EU, including but not limited to the EU General Data Protection Regulation 2016/679 (“GDPR”) and laws implementing or supplementing the GDPR.

    EU Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (as annexed to European Commission Decision 2010/87/EU) in the form attached hereto as Schedule 2 hereto, as such contractual clauses may be amended or replaced by the European Commission.

    Personal Data” means all information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a Data Subject or, where required by law, household, which is provided to ActivTrak by or on behalf of Customer in connection with the Agreement or related Ordering Document. Personal Data includes any information that constitutes: “personally identifiable information”; “non-public personal information”; “personal data”; “protected data”; or any similar category of information or data protected under Data Protection Laws. Personal Data shall be considered Customer’s Confidential Information under the Agreement.

    Personal Data Breach” means any actual or reasonably suspected misuse, compromise, or unauthorized, accidental or unlawful access, disclosure, acquisition, destruction, loss, or alteration of Personal Data, including, without limitation, any circumstance pursuant to which applicable Data Protection Laws require either notification to be given to affected parties or other activity in response to such circumstance.

    Processing” means any operation or set of operations which is performed upon 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.

    Processor” means the entity which Processes Personal Data on behalf of a Controller. A Processor includes “service providers,” “processors,” “third party service providers,” “third party agents,” and other similar terms under Data Protection Laws that refer to persons or entities that process Personal Data on behalf of a Controller.

    Restricted Transfer Country” means a jurisdiction whose Data Protection Laws restrict the transfer of Personal Data to third countries that are not Adequate Countries in the absence of
    appropriate safeguards, including by entering into the applicable Standard Contractual Clauses for such jurisdiction. Restricted Transfer Countries include, but are not limited to, member states of the European Union and the European Economic Area, Switzerland, and the United Kingdom.

    Service” has the meaning ascribed in the Agreement, and for the purposes of this DPA includes Subscription Services and any applicable Support Services (as defined in the Agreement).

    Standard Contractual Clauses” means standard or model contractual clauses that are published by a jurisdiction’s supervisory authority or that the jurisdiction otherwise authorizes to be used to enable the transfer of Personal Data from such jurisdiction to Processors in countries that such jurisdiction does not deem to be an Adequate Country, in compliance with such jurisdiction’s Data Protection Laws. Standard Contractual Clauses include but are not limited to the EU Standard Contractual Clauses.

    Subscription Services” means all available service plans for the ActivTrak SaaS analytics application to monitor and improve workforce productivity and efficiency, including the freemium, advanced, premium or any future service plan offered by ActivTrak, as may be modified, improved or expanded from time to time.

    Sub-processor” means any Processor, including ActivTrak Affiliate or third-party subcontractor, engaged by ActivTrak to Process Personal Data in connection with the provision of Services to Customer pursuant to the Agreement or related Ordering Document.

    Supervisory Authority” means public authority which is established in a jurisdiction to oversee compliance with Data Protection Laws, including but not limited to the supervisory authority in EU Member States pursuant to the GDPR.

  2. ROLES OF THE PARTIES.

    1. Controller. The Parties acknowledge and agree that with regard to Processing of Personal Data, Customer is the Controller. Prior to providing or otherwise making available Personal Data to ActivTrak, Customer will identify and inform ActivTrak of any additional Controllers. To the extent there are multiple Controllers, Customer shall serve as a single point of contact for ActivTrak. As other Controllers may have certain direct rights against ActivTrak, Customer undertakes to exercise all such rights on their behalf and to obtain all necessary permissions from the other Controllers. ActivTrak shall be discharged of its obligation to inform or notify any other Controller when ActivTrak has provided such information or notice to Customer.
    2. Processor. Customer appoints ActivTrak as Processor to Process Personal Data. Further, Customer authorizes ActivTrak to engage Sub-processors in accordance with the requirements set forth in Section 6.
    3. Assistance and Cooperation. ActivTrak shall provide such assistance, cooperation and information as Customer may reasonably require to comply with its obligations under applicable Data Protection Laws, including, without limitation, entering into any data transfer agreements, assisting with data protection impact assessments and associated consultations with a supervisory authority, and cooperating with any inquiry, notice or investigation by any SupervisoryAuthority.
  3. PROCESSING OF PERSONAL DATA.

    1. Restrictions on Processing. Customer discloses Personal Data to ActivTrak solely for the business purpose of ActivTrak performing the Services on behalf of Customer or Authorized Affiliate. ActivTrak shall treat Personal Data as Customer Confidential Information and process Personal Data only (i) in accordance with the documented instructions received from Customer or the applicable Authorized Affiliate (as the case may be), including with regard to transfers of Personal Data to a third country or an international organization (as defined in the GDPR), and (ii) for the purpose of fulfilling its obligations or exercising its rights under the Agreement. If ActivTrak reasonably believes Customer’s instruction violates Data Protection Laws, ActivTrak will promptly inform Customer and may suspend the performance of such instruction until Customer has modified such instruction or confirmed its lawfulness in writing. The scope of Customer’s instructions for Processing Personal Data shall be defined by the Agreement, any applicable Ordering Document and this DPA.
    2. Description of Processing. The Agreement, including this DPA, and any applicable Ordering Document set forth the purposes of the Processing. ActivTrak agrees to store or otherwise Process Personal Data at data centers at the locations listed in the ActivTrak Sub-processor List referenced in Section 6 of this DPA, with respect to Processing by ActivTrak Sub-processors in provision of the Services, as may be updated from time to time in accordance to Section 6 of this DPA.
    3. No Sale of Personal Data.
      shall not sell any Personal Data. The Parties acknowledge and agree that (i) ActivTrak has not and will not receive any monetary or other valuable consideration in exchange for ActivTrak’s receipt of Personal Data, and (ii) any consideration paid by Customer to ActivTrak under the Agreement is for ActivTrak’s provision of the Services only. ActivTrak shall not Process the Personal Data (a) for any purpose other than the specific purpose of providing the Services to Customer pursuant to the Agreement or applicable Ordering Document or (b) outside the direct business relationship between ActivTrak and Customer.
  4. DATA SUBJECTS RIGHTS.

    1. Data Subject Request. To the extent legally permitted, ActivTrak shall promptly, but in no event later than ten (10) business days, notify Customer of any request that it receives directly from a Data Subject to exercise their rights pursuant to Data Protection Laws (each a “Data Subject Request”). Unless otherwise required by applicable law, ActivTrak shall not respond to a Data Subject Request, except to direct such Data Subject to Customer. Further, Customer acknowledges and agrees that Customer shall be responsible to respond to Data Subject Requests.
    2. Assistance. As reasonably requested by Customer, and taking into account the nature of the Processing, ActivTrak shall assist, insofar as reasonably possible, by implementing technical and organizational measures to respond to Data Subject Requests.
    3. Costs. To the extent legally permitted, Customer shall be responsible for any reasonable costs arising from ActivTrak’s provision of assistance under this Section 4.
  5. ACTIVTRAK PERSONNEL.

    1. Confidentiality. ActivTrak shall ensure that each ActivTrak personnel with access to Personal Data is (i) informed of the confidential nature of the Personal Data; (ii) subject to
      confidentiality undertakings or professional or statutory obligations of confidentiality; and (iii) trained on their responsibility of confidentiality. ActivTrak shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
    2. Access to Personal Data. ActivTrak shall ensure that access to Personal Data is limited to those personnel with a need to know in order for ActivTrak to perform its obligations or exercise its rights under the Agreement.
    3. Reliability. ActivTrak shall take commercially reasonable steps to ensure the reliability of ActivTrak personnel with access to Personal Data.
  6. SUB-PROCESSORS

    1. Appointment of Sub-processors. Customer authorizes ActivTrak to appoint Sub-processors to Process the Personal Data on behalf of ActivTrak. The current list of Sub-processors engaged by ActivTrak and authorized by Customer is located on ActivTrak’s website here (“ActivTrak Sub-processor List”). Customer acknowledges and agrees that (a) ActivTrak’s Affiliates may be appointed as Sub­processors; and (b) ActivTrak (and its Affiliates) may engage third-party Sub-processors. Prior to disclosing Personal Data to such Sub-processors, ActivTrak (or ActivTrak Affiliate) shall enter into a written agreement with each such Sub-processor containing substantially similar privacy and data protection obligations as those in the Agreement, applicable Ordering Document and this DPA. To the extent allowable by law, ActivTrak shall make available to Customer upon request copies of such written agreements with Sub-processors.
    2. List of Current Sub-processors. ActivTrak shall maintain an updated list of Sub-processors, as made available on ActivTrak’s website here. Such Sub-processor lists shall identify the Sub-processors and the location of each. Such list of ActivTrak Sub-processors shall include instructions for Customer to subscribe to notification of updates to such list, including intended changes related to the addition or replacement of Sub-processors.
    3. Objection to New Sub-processors. Customer may object to any new Sub-processor by submitting such objection via this form promptly, but no later than ten (10) business days, after notice of such new Sub-processor in accordance with notification procedures set out in Section 6.2 above. With respect to Customer’s timely objections, ActivTrak will (i) use commercially reasonable efforts to provide Customer the Services without the use of such Sub-processor; (ii) take the corrective steps requested by Customer, if reasonably feasible; or (iii) temporarily or permanently, as agreed to by the Parties, cease the provision of the particular services, or aspect of the services, that involve the Sub-processor to which Customer objects. If the Parties are unable to resolve such objection within thirty (30) days, Customer may terminate in writing the relevant services in the applicable Order Form(s) only. For clarity, such termination shall be limited to those services which cannot be provided by ActivTrak without the use of the objected-to new Sub-processor.
    4. Urgent Sub-processor Substitution. In some instances, ActivTrak may be required to replace a Sub-processor on an urgent basis, where such replacement is necessary for the provision of the Services due reasons beyond its control. In such instances, ActivTrak shall notify Customer of the replacement as soon as reasonably practicable. Further, Customer shall have the right to object to such urgent substitutions or replacements pursuant to Section 6.3 above.
    5. Sub-processor Failure to Meet Obligations. Except as otherwise set forth in the Agreement and this DPA, ActivTrak shall be responsible for the obligations of, and services and functions performed by, Sub-processors to the same extent as if ActivTrak performed such obligations, services and functions itself.
  7. SECURITY.

    1. Safeguarding Customer Personal Data. Without limiting the Parties’ security-related obligations under the Agreement, ActivTrak shall at all times implement and maintain a comprehensive information security program that (i) contains reasonable and appropriate administrative, technical, and organizational measures designed to protect the security, confidentiality, integrity and availability of Personal Data, including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data; (ii) complies with Data Protection Laws that apply to ActivTrak as a Processor, including, where applicable, security requirements under the EU Data Protection Law; and (iii) complies with any other specific requirements agreed upon in writing by Parties.
    2. No Degradation of Security. During the Term of the Agreement, any applicable Ordering Document and this DPA, ActivTrak will not reduce or decrease the overall level of security provided to the protection of Personal Data without the approval of Customer.
  8. AUDITS.

    1. Data Handling Audit. In addition to any other audit rights that Customer may have under the Agreement, Customer, through a third-party auditor reasonably acceptable to ActivTrak, and relevant regulatory or supervisory authorities shall have the right to inspect and audit ActivTrak’s facilities, data, documentation, system accounts, books, records, internal policies and controls, and other materials applicable to compliance with this DPA. Such audit will be conducted at a time and in accordance with procedures mutually agreed upon by the Parties, with additional measures taken to minimize the impact of such audit on ActivTrak’s business operations.
    2. Cost. Each Party will bear its own costs in respect of Section 8.2; provided, however, that if any such audit determines that ActivTrak is in breach of its obligations set forth in this DPA, then ActivTrak Provider shall reimburse Customer for its costs and expenses incurred in connection with performing such audit.
  9. PERSONAL DATA BREACHES.

    1. Notification Requirements. In addition to any data or security breach notification obligations under the Agreement, ActivTrak will notify Customer without undue delay, but no later than 72 hours, after becoming aware of a Personal Data Breach.
    2. Notification Contents. In relation to the notification requirement in Section 9.1, ActivTrak shall describe (i) the nature of the Personal Data Breach; (ii) the categories and, to the extent reasonably possible, approximate number of Data Subjects; (iii) to the extent reasonably possible, information regarding the Data Subjects and data records concerned; (iv) measures taken or proposed to be taken by ActivTrak to address the Personal Data Breach; and (vi) the name and contact details of ActivTrak’s data protection officer or other relevant contact from whom more information may be obtained.
    3. Cooperation and Assistance. ActivTrak shall take prompt steps to remediate the Personal Data Breach and mitigate any harmful effects on Personal Data. In addition, ActivTrak shall reasonably cooperate with Customer’s requests and take such steps to assist in any subsequent investigation, mitigation, and remediation of such Personal Data Breach.
  10. RETURN, DELETION, AND RETENTION OF CUSTOMER DATA.

    1. Return and Deletion. Upon termination or expiration of the Agreement or applicable Ordering Document, ActivTrak shall, in accordance with the terms of the Agreement, delete or make available to Customer for retrieval all Personal Data (including copies, if applicable) in its possession or control, except to the extent that (i) ActivTrak is otherwise required maintain such data by applicable law; or (ii) such Personal Data is archived on back-up systems, for which ActivTrak will protect such data from further Processing and delete in accordance with ActivTrak’s standard deletion practices.
    2. Retention. In accordance with Section 10.1, ActivTrak may retain such portion of Personal Data, provided that ActivTrak (a) complies with the confidentiality, privacy and data security provisions of the Agreement and this DPA for as long as it retains such Personal Data, and (b) deletes such data without undue delay once ActivTrak is no longer subject to such requirement
  11. AUTHORIZED AFFILIATES.

    1. Contractual Relationship. The Parties acknowledge and agree that Customer enters into this DPA on behalf of itself and, as applicable, on behalf of its Authorized Affiliates. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. Customer shall ensure that Authorized Affiliates’ use of the Services shall at all times comply with Data Protection Laws, the Agreement, all applicable Ordering Documents and this DPA. Any such violation by an Authorized Affiliate shall be deemed a violation by Customer.
    2. Communication. Customer shall remain responsible for coordinating all communication with ActivTrak under this DPA in relation to this DPA on behalf of its Authorized Affiliates. Customer shall serve as a single point of contact forAuthorized Affiliates. ActivTrak shall be discharged of its obligation to inform or notify another Authorized Affiliate when ActivTrak has provided such information or notice to Customer.
    3. Rights of Authorized Affiliates. As Authorized Affiliates may have certain direct rights against ActivTrak, Customer shall exercise all such rights on their behalf and shall obtain all necessary permissions from any applicable Authorized Affiliate, subject to the following:
      1. Except where applicable Data Protection Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against ActivTrak directly;
      2. Customer shall exercise any such rights under this DPA in a combined manner for itself and all applicable Authorized Affiliates. For clarity, Customer shall not exercise such rights separately for each individual Authorized Affiliate; and
      3. With respect to audit rights under Section 8 of this DPA, Customer shall exercise audit requests on behalf of itself and all Authorized Affiliates in one single audit, to the extent reasonably possible.
  12. LIMITATION OF LIABILITY; INDEMNIFICATION.

    1. ActivTrak’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement. Any reference in such section of the Agreement to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and DPA together. For the avoidance of doubt, ActivTrak’s (including its Affiliates) total liability for all claims by Customer and all Authorized Affiliates arising out of or related to the Agreement and this DPAs shall apply in the aggregate, and not individually and severally to Customer and/or to any Authorized Affiliate.
    2. The indemnity provisions of the ‘Indemnification’ section of the Agreement are incorporated by reference herein.
  13. CROSS-BORDER DATA TRANSFER.

    1. Transfer Mechanisms for Data Transfers. Subject to the additional terms in Schedule 1, the Parties shall take measures to ensure that Personal Data is transferred in accordance with Data Protection Laws, including but not limited to entering into Standard Contractual Clauses pursuant to this Section 13. ActivTrak shall provide Customer with all information reasonably necessary to allow Customer to obtain any applicable data transfer authorization in connection with the Services.
    2. EU Standard Contractual Clauses. Pursuant to the Agreement or applicable Ordering Document, if Customer has approved ActivTrak to process Personal Data related to individuals located in the EU, EEA, United Kingdom, or Switzerland, the Parties concurrent with executing this DPA hereby execute the EU Standard Contractual Clauses, attached to this DPA as Schedule 2 (including Appendices 1-3).
    3. Other Restricted Transfer Countries.Pursuant to the Agreement or applicable Ordering Document, if Customer has approved ActivTrak to process Personal Data that originates from a Restricted Transfer Country other that the jurisdictions identified in Section 13.2 above, the Parties shall execute Schedule 2 of this DPA, or the applicable Standard Contractual Clauses for that jurisdiction, concurrently with the execution of the Agreement and this DPA, provided such Restricted Transfer Country permits the use of Standard Contractual Clauses, including in the form of Schedule 2 hereto, for data transfer purposes.
  14. GENERAL.

    1. Choice of Law. The validity, construction, and the Parties’ performance under this DPA shall be governed by the choice of law provision in the Agreement, unless otherwise required by Data Protection Law.
    2. Order of Precedence; Conflicts. To the extent there is a conflict between the provisions in this DPA and any privacy or data security-related provisions in the Agreement, the provisions in this DPA shall control. If the Services include the Processing of Personal Data originating in a Restricted Transfer County pursuant to Section 13 above, the obligations under the applicable Standard Contractual Clauses shall control with respect to any Personal Data that is subject to the laws of the relevant jurisdiction for such Standard Contractual Clauses, to the extent there is a with the requirements in this DPA.
    3. Change in Data Protection Laws. The Parties agree to work together in good faith to investigate and evaluate the impact of any changes to Data Protection Laws and work toward resolving concerns related to such changes. For this purposes of this section changes in Data Protection Laws includes, but is not limited to, changes in such laws or guidance issued by Supervisory Authority or governmental agency.
    4. Relationship of the Parties. The Parties acknowledge and agree that ActivTrak is acting as an independent contractor. Nothing contained in this DPA shall be construed as forming a partnership or joint venture between the Parties.
    5. Integration, Waiver and Severability.
      1. This DPA and the Agreement supersede all prior oral or written agreements with respect to the subject matter and contain the full understanding and agreement of the Parties with respect to the use, disclosure and safeguarding of Personal Data. This DPA may not be amended, modified or waived, in whole or in part, except in a writing signed by the Parties.
      2. No waiver by a Party of its rights with respect to any breach of the other party’s obligations in this DPA shall be construed to be a waiver of any subsequent similar breach, and such waiver shall not prevent the Party from asserting its right under this DPA or the Agreement.
      3. If any provision of this DPA is held to be invalid or unenforceable by a court of competent jurisdiction, the Parties agree that the provision affected will be severed and the maximum restriction available under such circumstances shall be substituted for the stated restriction. The remainder of this DPA will continue in full force and effect.
    6. Notices. Unless otherwise stated in this DPA, all notices required under this DPA shall be provided as required in the Agreement or applicable Ordering Document.
    7. Successors and Assigns. All terms of this DPA shall be binding upon and inure to the benefit of the Parties’ successors and assigns.
    8. Headings. The headings provided in this DPA are for convenience only and shall not affect the enforcement or interpretation of this DPA.
    9. Survival. The obligations undertaken and agreements made in sections 3.1, 3.3, 4, 5, 7, 9, 10, 12, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, shall survive the termination of the Agreement, any applicable Ordering Document and this DPA. Each such obligation or agreement shall be construed as independent of any other provision of this DPA, the Agreement or applicable Ordering Document following termination.
    10. Term and Termination. This DPA shall commence on the DPA Effective Date and shall thereafter remain in full force and effect unless and until terminated pursuant to this Section 10. This DPA will automatically terminate upon (i) the termination of the Agreement, (ii) written notice provided by Customer to ActivTrak, or (iii) upon written notice provided by ActivTrak to Customer.

List of Schedules

Schedule 1: Details of the Processing
Schedule 2: EU Standard Contractual Clauses (Processors)

SCHEDULE 1 – DETAILS OF THE PROCESSING

This Schedule 1 to this DPA includes certain details of the Processing of Customer Personal Data as required by Data Protection Laws, including but not limited to Article 28(3) GDPR.

Subject Matter and Duration of Processing of Customer Personal Data

As more clearly set out in the Agreement, Ordering Document and this DPA, ActivTrak Processes Customer Personal Data in the provision of its Services, which Customer uses to monitor and improve workforce productivity and efficiency, for the duration of the term as set forth in the Agreement and applicable Ordering Document(s), subject to Section 10 of the DPA or as otherwise agreed upon in writing by the Parties.

Nature and Purpose of Processing

ActivTrak will Process Personal Data as necessary for the provision of the Services to Customer or Authorized Affiliate, pursuant to the Agreement, applicable Ordering Documents and this DPA.

Categories of Data Subjects

Customer may upload Personal Data to the Services, or otherwise make available such Personal Data to ActivTrak, the extent of which is determined and controlled by Customer in its sole discretion. This Personal Data may relate, but is not limited to, the following categories of data subjects:

  1. Customer’s past, present and prospective customers, business partners and vendors, and their employees, partners, advisors, consultant, suppliers, vendors, contractors, subcontractors and agents;
  2. Past, present and prospective employees (or contact persons) of Customer;
  3. Customer’s agents, advisors and freelancers; and
  4. Other end users of the Service authorized by Customer to use the Services.

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but are not limited to the following categories of Personal Data:

  1. Personal Identifiers (including name, government ID);
  2. Professional life data (including business address, e-mail address, phone and fax contact details and associated local time zone information);
  3. Personal life data (including home address and phone number);
  4. Employer and employment information (including Employer name, title, job position, location, employee ID, if any);
  5. IT systems information (including user ID and password, computer name, domain name, IP address, and software usage pattern tracking information, i.e. cookies); and
  6. The data subject’s email content and transmission data which is available on an incidental basis for the provision of Services and Support Services (incidental access may include accessing the content of e-mail communications and data relating to the sending, routing and delivery of emails).

SCHEDULE 2 – STANDARD CONTRACTUAL CLAUSES (MODULE 2 – CONTROLLER TO PROCESSOR)

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)[1]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

  • 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 8.1(b), 8.9(a), (c), (d) and (e);
    • Clause 9(a), (c), (d) and (e);
    • Clause 12(a), (d) and (f);
    • Clause 13;
    • Clause 15.1(c), (d) and (e);
    • Clause 16(e); and
    • Clause 18(a) and (b).
  • Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

  • Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  • These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  • 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

(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.

  • Instructions
  • 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.
  • The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
  • 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.

  • 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 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.

  • 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.

  • 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).

  • Security of processing
  • 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.
  • 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.
  • 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.
  • 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.
  • 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).

  • 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[2] (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 or if:

(a)        the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(b)       the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(c)        the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(d)       the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

  • Documentation and compliance
  • The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  • 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.
  • 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.
  • 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.
  • 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 subprocessors

  • The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least 30 days prior to the engagement of the subprocessor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of subprocessors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.
  • Where the data importer engages a subprocessor 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.[3]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 subprocessor complies with the obligations to which the data importer is subject pursuant to these Clauses.
  • 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.
  • 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.
  • The data importer shall agree a third-party beneficiary clause with the subprocessor 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 subprocessor contract and to instruct the subprocessor to erase or return the personal data.

Clause 10

Data subject rights

  • 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.
  • 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.
  • In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

  • 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.
  • 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.
  • 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:
  • 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;
  • refer the dispute to the competent courts within the meaning of Clause 18.
  • 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.
  • The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  • 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

  • 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.
  • 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 subprocessor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
  • 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 subprocessor) 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.
  • The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its subprocessor), 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.
  • 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.
  • 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.
  • The data importer may not invoke the conduct of a subprocessor to avoid its own liability.

Clause 13

Supervision

  • 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.

  • 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

  • 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.
  • 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 safeguards[4];
  • 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.
  • 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.
  • The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  • 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).
  • Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

  • Notification
  • 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.
  • 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.
  • 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.).
  • 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.
  • 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.
  • Review of legality and data minimisation
  • 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).
  • 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.
  • 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

  • The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  • 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).
  • 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.

  • 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.
  • Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of 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 Germany.

Clause 18

Choice of forum and jurisdiction

  • Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  • The Parties agree that those shall be the courts of
  • 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.

The Parties agree to submit themselves to the jurisdiction of such courts.

[1] Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

[2] The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

[3] This requirement may be satisfied by the subprocessor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

[4] As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise. accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

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