Data Processing Addendum

1. DEFINITIONS

"Controller" means the entity that determines the purposes and means of the processing of Personal Data; or equivalent term under the Applicable Data Protection Laws.

"Data Subject" means an identified or identifiable individual or equivalent term under the Applicable Data Protection Laws.

“Personal Data Breach” means “personal data breach” or equivalent term under the Applicable Data Protection Laws to the extent it involves Your Personal Data.

“Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; or equivalent term under the Applicable Data Protection Laws.

“Processor” means the entity that Processes Personal Data on behalf of the Controller or equivalent term under the Applicable Data Protection Laws.

“SCCs" means the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) and set forth as Schedule D to this DPA. For the avoidance of doubt, Modules 2 and 3 of the SCCs shall apply as set out in Clause 10.

“Sub-processor” means a Processor engaged by Us to Process Your Personal Data in the provision of the Services to You.

2. PROCESSING OF PERSONAL DATA

2.1 Role of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, You may be either the Controller or the Processor of the Personal Data and We shall be Your Processor. Chargebee and its Affiliates will further engage Sub-Processors pursuant to the requirements set forth in Section 6 (Sub-Processors) below.

2.2 Processing of Personal Data by You. You shall ensure that Your use of Personal Data and Your instructions with regards to Processing of Personal Data are in compliance with Applicable Data Protection Laws. You shall have sole responsibility for the accuracy, quality, and legality of Personal Data, the means by which You acquired Personal Data as well as ensuring that you have obtained the necessary consents, permissions, authorizations and right to allow Us to Process the Personal Data as set forth in this DPA. You shall not Process or transfer to Us any Sensitive Data in Your use of the Services.

2.3 Processing of Personal Data by Us. We shall Process the Personal Data solely in accordance with Your documented instructions for the following purposes: (i) Processing in accordance with the Terms, this DPA, Applicable Data Protection Laws, the Privacy Notice (to the extent applicable), any other agreement or addendum executed by the Parties; (ii) Processing as required for compliance with applicable laws; (iii) Processing initiated by Users and/or End-Customers in their use of the Services; and (iv) such other Processing as agreed to between the Parties from time to time, provided that such Processing is consistent with the Terms and the nature of services provided by Us. We shall immediately inform You in writing if, in Our opinion, an instruction infringes Applicable Data Protection Laws. We shall not be liable for any liabilities, losses, fines, costs, penalties and/or damages, arising from or in connection with any Processing in accordance with Your instructions following Your receipt of such notice from Us.

2.4 Details of the Processing. The nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed and the duration of Processing under this DPA are further specified in Schedule A (Details of the Processing) of this DPA.

3. OUR PERSONNEL

We shall ensure that Our personnel authorized to Process Personal Data have executed written agreements addressing relevant obligations regarding confidentiality or are under appropriate statutory obligation of confidentiality. We shall ensure that the confidentiality obligations under such agreements survive the termination of the personnel engagement.

4. SECURITY

4.1 Technical and Organizational Measures. We shall, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk as well as safeguards to ensure confidentiality, integrity, and availability of Personal Data. Such measures are set forth under Schedule B (Technical and Organization Measures).

4.2 Determination of Security Requirements. You acknowledge that the Services include certain features and functionalities that may impact the security of Your data and account, such as, but not limited to, role-based access. You may elect whether or not to use such features and functionalities and are responsible for ensuring that the Services are appropriately configured, taking into account the nature of data that You Process using the Services. You are responsible to independently assess whether the security measures offered by Us are adequate for the nature of data You Process using the Services as well as under laws applicable to You.

5. SUB-PROCESSORS

5.1 Appointment of Sub-Processors. You consent to the engagement of Sub-Processors set forth in Schedule C (Sub-Processors) and hereby grant a general authorization (a) to Us to appoint Our Affiliates as Sub-Processors, and (b) to Us and Our Affiliates to appoint any other third party as Sub-Processors to support the provision of the Services, subject to the conditions set forth in Section 5.2 below.

5.2 Conditions of Appointment. We shall (a) maintain the list of Sub-Processors applicable to the Services on the webpage set forth in Schedule C (Sub-Processors); (b) provide You with at least ten (10) days’ written notice of any addition or removal of a Sub-Processor, allowing You the opportunity to object to such addition or removal; (c) ensure that there is a written contract with the Sub-Processor applying essentially the same data protection terms as are set out in this DPA; and (d) remain liable to You for the performance of Sub-Processor’s obligations. If You have any reasonable objection to the addition or removal of a Sub-Processor, You shall notify Us of such objections in writing within ten (10) days from the date of Our notice to You and the Parties shall seek to resolve the matter in good faith. If You do not provide timely objection to the addition or removal of the Sub-Processor in accordance with this Section, You will be deemed to have consented to the Sub-Processor and waived Your right to object.

6. RIGHTS OF DATA SUBJECTS

If We receive a request from a Data Subject to exercise their rights under the Applicable Data Protection Laws with respect to the Personal Data, We shall direct the Data Subject to make the request to You. To facilitate this, We may identify You and share Your contact information with the Data Subject, to which You hereby agree. We shall also promptly notify You of receipt of such request, unless legally prohibited. To the extent that You do not have the ability to address the Data Subject request using the features and functionalities of the Services, We shall, upon Your written request, taking into account the nature of the Processing and the information available to Us, assist You in fulfilling Your obligation to respond to such Data Subject requests insofar as is reasonably practicable. To the extent that such assistance cannot be reasonably accommodated within the normal provision of Services, including where custom work is required or the assistance involves disproportionate efforts by Chargebee, We may charge You for the provision of such assistance, where legally permissible, taking into account the administrative and other costs involved in the provision of such assistance. Any such charges shall be notified to You in advance for your review and approval.

7. BREACH NOTIFICATION

We shall notify You of any Personal Data Breach that we become aware of without undue delay, and within timelines prescribed under Applicable Data Protection Laws. To the extent such Personal Data Breach is caused by Our violation of this DPA, We shall make reasonable efforts to identify and remediate the cause of such Personal Data Breach. We shall provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach, such as any notices You are required to provide to a supervisory authority or Data Subjects under Applicable Data Protection Laws.

8. ASSISTANCE WITH COMPLIANCE

We shall, taking into account the nature of Processing and information available to Us, provide to You, upon Your written request, any information and assistance reasonably required for conducting data protection impact assessments, prior consultation with supervisory authority, and such other obligation You are required to fulfil in relation to the Personal Data under Applicable Data Protection Laws. To the extent that such assistance cannot be reasonably accommodated within the normal provision of the Services, including where repetitive requests are made or the assistance involves disproportionate efforts by Chargebee, We may charge You for the provision of such assistance, where legally permissible, taking into account the administrative and other costs involved in the provision of such assistance. Any such charges shall be notified to You in advance for your review and approval.

9. DISCLOSURE PURSUANT TO APPLICABLE LAWS

If We receive a request from a regulatory authority or a law enforcement agency for disclosure of Personal Data, We shall attempt to redirect the authority or agency to make the request directly to You. To facilitate this, We may identify You and share your contact information with the authority or agency to which You hereby agree. If We are obliged to disclose the Personal Data, to the extent legally permissible, We shall (a) make reasonable efforts to provide You notice of the request; and (b) take reasonable measures to challenge the terms of the request and limit the disclosure of Personal Data to the minimum permissible based on a reasonable interpretation of the request.

10. RETURN AND DELETION OF PERSONAL DATA

You shall, in Your use of the Services, have the ability to export and delete Personal Data. We encourage You to exercise such options, where available, prior to termination of Your Service. Upon termination of Your Service and during the Data Retention Period, You may request for export or deletion of Your Personal Data and We shall assist with such request, subject to the Terms. Following the Data Retention Period set forth in the Terms, We reserve the right to delete all Personal Data in Our possession in the normal course of Our operations. You understand that Personal Data once deleted cannot be recovered. Notwithstanding the foregoing, You agree that We may retain Service Data, including Personal Data forming part of it to the extent required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claims.

11. CERTIFICATIONS AND AUDITS

11.1 Demonstrating Compliance . We shall make available to You such information and allow for and contribute to audits, as is necessary to demonstrate Our compliance with obligations under the Applicable Data Protection Laws, in accordance with Section 11.2 (Certifications) and Section 11.3 (Audits) below. We shall cooperate with Your dealings with data protection authorities with respect to Personal Data that We Process on Your behalf.

11.2 Certifications. We periodically engage third-party auditors to evaluate Our security and confidentiality practices and obtain relevant certifications attesting to the effectiveness of the controls implemented. You may obtain a copy of the latest audit report and certificates by writing to support@trainn.co.

11.3 Audits. To the extent You want to conduct an audit, the scope of which is beyond the scope covered under the audits conducted and third-party certifications obtained under Section 11.2, We shall, upon reasonable notice, allow for and contribute to audits of Our technical and organizational measures (including data processing systems, policies, procedures and records), not more than once in twelve (12) months, to determine Our compliance with the obligations under Applicable Data Protection Laws, during regular business hours and with minimal interruption to Our business operations. Such audits shall be conducted by You, Your Affiliates or an independent third party on Your behalf (which will not be a competitor of Our business) subject to strict confidentiality obligations. The scope, duration, cost, methodology and procedures for the audit shall be defined and mutually agreed between the Parties in writing prior to the commencement of the audit.

12. JURISDICTION-SPECIFIC CLAUSES

12.1 European Economic Area (EEA), United Kingdom and Switzerland.

• To the extent that We Process any Personal Data originating from the EEA, United Kingdom and/or Switzerland in a country that has not been designated by the relevant regulatory authority in such region as providing an adequate level of protection for Personal Data, the transfer of such Personal Data shall be subject to the following safeguards:

  • Where the transfer of such Personal Data is to the United States of America, the transfer shall be made in reliance with Chargebee’s certification to the EU-U.S. Data Privacy Framework (“EU-U.S. DPF”), the UK Extension to the EU-U.S. Data Privacy Framework (“UK-U.S. DPF”) and the Swiss-U.S. Data Privacy Framework (“Swiss-U.S. DPF”) respectively;

  • Where the transfer of such Personal Data is to a country other than the United States of America, the transfer shall be subject to the SCCs.

    • Module 2 (Controller to Processor) of SCCs shall apply to processing of Personal Data where You are the Controller and We are the Processor; and Module 3 (Processor to Processor) of the SCCs shall apply to processing of Personal Data where You are a Processor, acting under the instructions of Controller(s) and We are Your sub-processor. For the purposes of descriptions in the SCCs and only as between the Parties, You agree that You are the “data exporter” and We are the “data importer” under the SCCs (notwithstanding that You may be located outside the EEA and may Yourself be a Processor acting on behalf of third-party Controllers). Further, Schedules A, B, and C of this DPA will take the place of Annexes I, II, and III of the SCCs respectively.

    • The provisions in Schedule E shall additionally apply for transfers of Personal Data originating in the United Kingdom, to the extent mandated under the UK GDPR .

• In the event that the EU-U.S. DPF, UK-U.S. DPF and/or Swiss-U.S. DPF are determined by the relevant regulatory authority as no longer providing adequate safeguard for transfer of Personal Data originating from EEA, UK and/or Swiss respectively, sub-clause 12.1.A.(b) shall automatically apply to transfers of Personal Data governed by sub-clause 12.1.A.(a) above.

12.2 California (CCPA Obligations).

• Notwithstanding anything to the contrary in the DPA, this Section shall apply to the Personal Information of the residents of the State of California, USA. In this Section the following terms “Business”, “Service Provider”, “Personal Information”, “Consumers”, “Sell”, and “Share” shall have the meanings given in the CCPA.

• You acknowledge and agree that You are the Business and We are the Service Provider with respect to Personal Information of Consumers (as those terms are understood under the CCPA) disclosed by You to Us forming part of Service Data.

• We will not Sell, or Share the Personal Information of Consumers that We Process on Your behalf pursuant to the Terms and the DPA.

• We will not retain, use, or disclose Personal Information of Consumers that We Process on Your behalf pursuant to the Terms and the DPA for any purpose other than for the specific purposes set forth in the Terms, DPA and as part of the direct relationship between You and Us.

• We will not combine the Personal Information that is received from or on Your behalf with Personal Information that is received from or on behalf of any other person or persons or from Our direct interaction with the Consumers except as permitted under the CCPA.

• You acknowledge and agree that You shall be responsible for providing the required notice to Consumers with respect to sharing their Personal Information with Us.

• We acknowledge that You have the right upon notice to take reasonable and appropriate steps to stop and remediate the unauthorized use of the Personal Information.

• During the term of the Terms, to the extent that You, in Your use of the Services, do not have the ability to address a request from Consumers, including a request to delete Personal Information, We shall provide reasonable cooperation to assist You to respond to such requests from Consumers relating to the Processing of Personal Information under the Terms and/or the DPA when You are required to respond to such requests under CCPA, subject to the provisions under CCPA. In the event that any such request is made directly to Us, We shall not respond to such communication directly without Your prior authorization, unless legally compelled to do so, except to confirm that such request relates to You to which You hereby agree.

• We shall notify You immediately if We determine that We can no longer comply with the obligations under CCPA.

• We certify that We understand the restrictions in this Section and will comply with such restrictions.

13. TERM AND TERMINATION

This DPA shall continue to be in full force and effect for the duration of the Terms and shall cease automatically thereafter.

14. MISCELLANEOUS

14.1 Precedence. In the event of a conflict between this DPA and the Terms, the provisions of this DPA shall take precedence. In the event of any conflict between the provisions of this DPA and the SCCs, the provisions of the SCCs shall take precedence.

14.2 Amendments. We may amend this DPA from time to time by posting the most current version on Our Website, in which case the new DPA will supersede prior versions. Please check this DPA periodically to take notice of changes as they will be binding on You. If an amendment materially affects Your rights, We will notify You (by, for example, sending an e-mail to the e-mail address associated with Your Account, posting on Our website or providing a notice within the Services). Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. Where amendments to this DPA are required to ensure compliance with Applicable Data Protection Laws, upon written request by either Party, the Parties shall negotiate and agree on such amendments.

14.3 Severability. Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.

Schedule A

• LIST OF PARTIES UNDER THE SCCS

  Data exporter:

  The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.

  Signature & Date: By subscribing to the Terms, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the date of subscribing to the Terms.

  Role: Controller or Processor

  Data importer(s):

  Name: Chargebee Inc.

  Address: 909 Rose Avenue, Suite 950, North Bethesda, MD 20852

  Contact person’s name, position and contact details: Privacy team, privacy@chargebee.com

  Activities relevant to the data transferred under these Clauses: Provision of the Services and Processing of Personal Data as permitted under the Terms.

  Signature & Date: By subscribing to the Terms, Data Importer is deemed to have accepted the SCCs incorporated herein, including their Annexes, as of the date of subscribing to the Terms.

  Role: Processor or sub-processor

• DESCRIPTION OF TRANSFER

  Categories of data subjects whose personal data is transferred

  Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects:

  • Employees, contractors and agents of the data exporter added as Users within the data exporter’s Account;

  • Prospective customers and customers of data exporter whose Personal Data is submitted to or Processed using the Services with respect to data exporter’s access to and use of the Services; and

  • Such other individuals whose Personal Data is submitted to or Processed using the Services with respect to data exporter’s access to and use of the Services.

  Categories of personal data transferred

  Data exporter determines the categories of Personal Data transferred to the data exporter with respect to the data exporter’s access to and use of the Services.

  Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

  No Sensitive Data are transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Data to the data importer for Processing.

  The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)

  Data is transferred on a continuous basis.

  Nature of the processing

  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 of data (whether or not by automated means).

  Purpose(s) of the data transfer and further processing

  We shall Process the Personal Data solely in accordance with Section 2.3 of the DPA.

  We may further transfer Personal Data to third-party service providers that host and maintain Our applications, backup, storage, payment processing, analytics and other services. These third-party service providers may have access to or Process Personal Data for the purpose of providing these services to Us.

  The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

  We shall retain the Personal Data for the duration of the Terms and this DPA, and thereafter return or delete the Personal Data as set forth in Section 10 of the DPA.

  For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

  https://trainn.co/sub-processors

• COMPETENT SUPERVISORY AUTHORITY

  In respect of the SCCs:

  Module 2: Transfer Controller to Processor

  Module 3: Transfer Processor to Processor

  Where You are the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over the Customer in accordance with Clause 13 of the SCCs.

Schedule B – Technical and Organizational Security Measures

The technical and organizational measures that Chargebee implements are described at https://trainn.co/security

Schedule C – List of Sub-processors

The list of Sub-Processors for Trainn is available at https://trainn.co/sub-processors

Schedule D – Standard Contractual Clauses

SECTION I

• Purpose and Scope

  • The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

  • 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’).

  • These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

  • The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

• Effect and invariability of the Clauses

  • 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.

  • These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

• 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);

    • Clause 18(a) and (b)

  • Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

• 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.

• 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.

• 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.

• Docking clause

  • 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.

  • 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.

  • 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

• Data protection safeguards

  The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

  8.1 Instructions

  • The data importer shall process the personal data only on documented instructions from the data exporter. Where the data exporter is a processor, the data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions throughout the duration of the contract.

  • The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.

  • Where the data exporter is a processor, the data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.

  8.2 Purpose limitation

  The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I. B, unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.

  8.3 Transparency

  On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including 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 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 or, where the data exporter is a processor, the controller, 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 or the controller, and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

  8.6 Security of processing

  • 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 or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

  • 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 and, where appropriate and feasible, the controller 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.

  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 or the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

  • the onward transfer is to a country benefiting 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

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

  • 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 or controller.

  • The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses. Where the data exporter is a processor, the data exporter shall provide such information to the controller. The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer. Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.

  • 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.

• Use of sub-processors

  • 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 ten (10) 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.

  • 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.

  • The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

  • The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

  • 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.

• Data subject rights

  • The data importer shall promptly notify the data exporter and, where appropriate, the controller 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, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. 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 or, the controller, as communicated by the data exporter.

• 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.

• 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 sub-processor 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 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 or, where the data exporter is a processor, the controller, under Regulation (EU) 2016/679.

  • 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.

  • 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 Clause 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 sub-processor to avoid its own liability.

• Supervision

  • 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.

  • 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

• 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;

    • 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 and where the data exporter is a processor, if appropriate in consultation with the controller. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or where the data exporter is a processor, if instructed by the controller 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.

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

  15.1 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.

      Where the data exporter is a processor, the data exporter shall forward the notification to the controller.

  • 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.

  15.2 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. Where the data exporter is a processor, the data exporter shall make the assessment available to the controller. 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

• 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 and, where the data exporter is a processor, the controller of such noncompliance. 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

    • 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

    • 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.

• Governing Law

  These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.

• 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 the Netherlands.

  • A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State/Switzerland in which he/she has his/her habitual residence.

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

ANNEX I

Details specified in Schedule A of the Addendum

ANNEX II

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

Details specified in Schedule B of the Addendum

ANNEX III

LIST OF SUB-PROCESSORS

Details specified in Schedule C of the Addendum

SCHEDULE E

UK Addendum to Standard Contractual Clauses

This Schedule E shall stand included as an addendum to the Standard Contractual Clauses set forth in Schedule D. For the purposes of this Schedule, “UK IDTA” shall refer to the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner, Version B1.0, in force from March 21, 2022.

The UK IDTA shall be deemed to be incorporated into this Schedule and completed as follows:

Part 1: Tables

In Table 1 of the UK IDTA (Parties), the parties’ details and key contact information shall be as set forth in Annex I of Schedule D.

In Table 2 of the UK IDTA (Selected SCCs, Modules and Selected Clauses), the version of the Approved EU SCCs which this UK IDTA is appended to, including the Appendix Information, shall be as set forth in Schedule D.

In Table 3 (Appendix Information) of the UK IDTA:

Annex 1A: List of Parties: Shall be as set forth in Annex I of Schedule D.

Annex 1B: Description of Transfer: Shall be as set forth in Annex I of Schedule D.

Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: Shall be as set forth in Annex II of Schedule D.

Annex III: List of Sub processors: Shall be as set forth in Annex III of Schedule D.

In Table 4 (Ending this DPA when the Approved Addendum Changes) of the UK IDTA, both the data importer and the data exporter may end the UK IDTA in accordance with the terms of the UK IDTA.

Part 2: Mandatory Clauses

Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on February 2, 2022, as it is revised under Section 18 of those Mandatory Clauses.