LIVEINTENT MEDIA SERVICES INSERTION ORDER 

EXHIBIT A:

 

LIVEINTENT DATA USAGE POLICY 

                                             

                                               EXHIBIT A: LIVEINTENT DATA USAGE POLICY 

This LiveIntent Data Usage Policy (the “Data Usage Policy”) is attached and made a part of any agreement(s) (the ‘Agreement) entered into by and between LiveIntent, Inc. (“LiveIntent”) and Company in connection with the Services. This Data Usage Policy is separate from our Consumer Privacy policy, which may be referenced here; and our Website Privacy policy, which is available here. If there is a conflict between any of the provisions of this Data Usage Policy and any other terms in the Agreement, the provisions of this Data Usage Policy shall prevail with respect to that conflict. This Data Usage Policy shall continue in force until the termination of the Agreement. 

 

1. Definitions: Capitalized terms used but not defined in this Data Usage Policy shall have the meaning ascribed to them by the Agreement. For the purposes of this Data Usage Policy, the following terms shall have the following meanings: 

• • “LiveIntent Support Tags” is defined as LiveIntent technologies including the LiveTag, LiveConnect Web Tag, and LiveConnect InApp Tag that are used to collect and transmit data to LiveIntent.
  • “Direct Data Sharing” is defined as other ways in which Company shares data with LiveIntent including file sharing, server to server syncing or other means.
  • “LiveIntent Graph” is defined as the data asset that LiveIntent creates that connects hashed email addresses, cookies, and other information for the purposes of LiveIntent providing its Services. The LiveIntent Graph is only maintained in the United States and Canada. 
  • “Services” is defined as the services LiveIntent performs on behalf of its customers, including, but not limited to, those included in Exhibit B, LiveIntent’s Services Privacy Policy, which is available at https://www.liveintent.com/services-privacy-policy/, and the Service Order Forms associated with this agreement.

2. In the course of LiveIntent providing its Services, Company makes information available to LiveIntent regarding Company’s customers, end users, email recipients, and other individuals that (i) alone or in combination with other information could reasonably be used to identify, contact, or derive information regarding a particular individual or household, and (ii) may be considered to be personal data or personal information as defined under, or otherwise governed by, applicable data protection laws (“Personal Information”). Company discloses or makes available such Personal Information to LiveIntent through Direct Data Sharing or through the implementation of LiveIntent Support Tags to perform Services and, except for Personal Information collected from individuals in the European Economic Area, the United Kingdom, or Switzerland, to develop and deliver LiveIntent’s offerings and Services, including (i) adding Personal Information to and referencing data that already exists in the LiveIntent Graph in order for LiveIntent to improve and provide its Services; and (ii) authenticating and validating data to improve the performance of Services provided by LiveIntent. Notwithstanding the rest of this paragraph 2, LiveIntent shall use and disclose Personal Information collected from individuals in the European Economic Area, the United Kingdom, or Switzerland only for purposes of providing Marketing and Advertising Services, as described in the Marketing and Advertising Services Privacy Policy, available at https://www.liveintent.com/services-privacy-policy/#marketing-services.

3. Company hereby represents that at or before the point of collecting Personal Information, Company provides all individuals to whom Personal Information relates any legally required notices, obtains any legally required consents from such individuals, and provides such individuals with any legally required opportunities to opt-out of the sharing of Personal Information, in order for LiveIntent to be able to provide its Services.

 

4. By entering into an agreement to use our Services, Company acknowledges and agrees that LiveIntent will process Personal Information received in the course of providing the Services in accordance with LiveIntent’s Services Privacy Policy, which is available at https://www.liveintent.com/services-privacy-policy/, and in compliance with all applicable data protection laws and implementing regulations (collectively “Data Protection Requirements”). LiveIntent will provide the same level of privacy protection to Personal Information made available to us by Company as the level required under the Data Protection Requirements. Company has the right to take reasonable steps to ensure that LiveIntent uses the Personal Information it has made available to us in a manner consistent with obligations under the Data Protection Requirements and to stop or remediate unauthorized use of that Personal Information. LiveIntent will promptly inform Company if we make a determination that we can no longer meet our obligations under the Data Protection Requirements.

 

5. Under data protection laws applicable in the European Economic Area, the United Kingdom, and Switzerland, including but not limited to the European Union’s General Data Protection Regulation, LiveIntent is considered a Processor of Personal Information. Applicable Data Protection language regarding the protection of applicable data is expressly agreed to and incorporated herein under Exhibit C of this Agreement.

                             

                                       EXHIBIT C: GDPR DATA PROTECTION ADDENDUM

This GDPR Data Protection Addendum (this “Addendum”) is attached to and made a part of any agreement(s) (the “Agreement”) entered into between LiveIntent, Inc., with its principal place of business at 1 World Trade Center, Floor 45, Suite A New York, NY 10007 (“LiveIntent”) and the Company (as defined below) (each a “Party” and together the “Parties”), and is effective as of the date signed below by Company.  If there is a conflict between any of the provisions of this Addendum and any other terms in the Agreement, the provisions of this Addendum shall prevail with respect to that conflict. This Addendum shall continue in force until the termination of the Agreement.  In the event of any uncertainty regarding the interpretation of this Addendum (or any provisions thereof), this Addendum and its provisions shall be interpreted in a manner that enables the Parties to comply with the GDPR (as defined below).

• Definitions. Capitalized terms used but not defined in this Addendum shall have the meaning ascribed to them by the Agreement.  For the purposes of this Addendum, the following terms shall have the following meanings:
  • “Affiliate” means as to any entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity.
  • “Company” means the undersigned media company, advertiser, agency, or other party, as the case may be, for and on behalf of itself, any Affiliates, wherever located, and, to the extent applicable, any advertisers or publishers represented by the undersigned Party and its Affiliates in connection with the Services.
  • “Controller”, “Processor”, “Process(ing)”, “Data Subject”, “Supervisory Authority”, and “Personal Data” each have the meaning given to such terms in European Union Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “GDPR”); and
  • “Data Protection Laws” means the GDPR and all applicable data protection legislation and regulations.

• Relationship of the Parties.

• • LiveIntent shall act as a Processor or subprocessor in the provision of services under the Agreement (“Services”).  Company shall act either as a Controller or as a Processor to one or more Controllers.   
  • Company instructs and authorizes LiveIntent to drop cookies to Company’s users (or, where Company is an agency acting on behalf of one or more other parties, to those parties’ users). Dropping cookies enables data segments to be placed into users’ browser cookies. Company will earn revenue from its audience inventory by dropping these cookies, through the placement of content and advertising to Company’s users as they visit websites across the Internet.  
• Notice and Consent.
  • Company’s website privacy policy shall provide concise, transparent, intelligible, and easily accessible information, using clear and plain language, notifying users of the Processing of Personal Data that results from the Agreement, in a manner compliant with Data Protection Laws where applicable.
  • Company shall (a) collect any consent required by applicable law prior to activating any code provided under the Agreement that deploys technology that stores information on user devices, or gains access to information stored on user devices, such as cookies and HTML tags, and any data collection and Processing resulting from that use (“Required Consents”); (b) configure the applicable code or other tracking technology in accordance with specifications provided by LiveIntent to signal to LiveIntent whether Company has collected all Required Consents; and (c) if applicable, include reference to LiveIntent (LiveIntent vendor id is 148) in Company’s pubvendors. json file posted at the well-known path of Company’s domain.  A list of cookies and HTML tags made available to the Company for use pursuant to the Agreement is set forth in the following list: https://support.liveintent.com/hc/en-us/articles/360000866243.  LiveIntent will inform Company about any updates to the list before any new cookies or HTML tags are activated and made available to Company, and Company will have the option to continue to use or to decline to use the service making use of the new cookies or HTML tags. Company shall also ensure that its privacy policy includes a conspicuous active hyperlink to a website opt-out tool that allows the user to opt out of the use of such third party technology, including such technology provided by LiveIntent. 
  • Each Party represents and warrants that it has the full power and authority to enter into this Addendum and the Agreement, including, in Company’s case, on behalf of any advertisers or publishers represented by Company, and to perform the acts required of each of them, including having obtained any consents or authorizations that may be required to provide and use hashed email addresses to support cookie placement.
• Data Processor. LiveIntent agrees that it will:
  • Process any Personal Data collected, as set forth in Appendix 1 to Schedule 1, for the purpose of providing the Services as a Processor;
  • Process the Personal Data only for the purpose of providing the Services or as otherwise instructed in writing by Company, and inform Company if any instruction contradicts any legal requirements to which LiveIntent is subject;
  • Keep all Personal Data confidential, as required under the Agreement;
  • Provide access to Personal Data only to those of its employees, Affiliates, or service providers who need access to such data for the performance of the Services, and that they will only access Personal Data in order to provide the Services or in accordance with Company’s instructions;
  • Take adequate technical and organizational security measures to safeguard Personal Data against unauthorized access, destruction, disclosure, transfer, or other improper use, including those set forth in Appendix 2 to Schedule 1;
  • Make available to Company the Personal Data which have been provided by Company to enable Company to comply with its obligations to Data Subjects exercising their rights under Data Protection Laws.  LiveIntent shall refer such Data Subjects to Company and shall also, at the request of Company, amend, correct, delete, add to, cease using or restrict the use of Personal Data relating to such Data Subjects;
  • Promptly notify Company of any accidental or unauthorized access, destruction, disclosure, transfer, or other improper use of Personal Data that have been supplied by Company, after LiveIntent become aware of any such access, destruction, disclosure, transfer or other improper use, or of any complaints by individuals or third parties that involve or pertain to such Personal Data, and shall, taking into account the nature of the Processing and the information available to LiveIntent, provide such assistance to Company as may be reasonable in the circumstances to enable Company meet its obligations to notify any Supervisory Authority or any other regulatory or governmental authorities or Data Subjects of such event where Company is required to do so by law;
  • Taking into account the nature of the Processing and the information available to LiveIntent, assist Company in relation to any privacy impact assessments or consultations with Supervisory Authorities about the Processing of Personal Data in the context of the provision of the Services or any inquiry, complaint, or claim in relation to the Processing of Personal Data provided by Company;
  • Make available to Company all information necessary to demonstrate that LiveIntent is in compliance with this Section 4 (Data Processor);
  • Contribute to audits by Company or an auditor designated by Company, including under the Transfer Clauses if applicable, so that Company can reasonably verify LiveIntent’s compliance with the obligations of this Section 4 (Data Processor) (a “Compliance Audit”); provided, however, that any such Compliance Audits (a) shall occur at a mutually agreed-upon time and location and subject to no fewer than ten (10) business days’ advanced notice; (b) will require no more than two (2) business days to complete; (c) will be limited to one Compliance Audit per year; and (d) will not include any access to any of LiveIntent’s systems.  LiveIntent may object in writing to an auditor appointed by Customer to conduct any audit if the auditor is, in LiveIntent’s reasonable opinion, not suitably qualified or independent, or otherwise manifestly unsuitable. Any such objection by LiveIntent will require Customer to appoint another auditor or conduct the audit itself.  Customer shall reimburse LiveIntent for LiveIntent’ reasonable costs and expenses incurred in connection with the Compliance Audit.  Nothing in this Section 4.10 varies or modifies the Transfer Clauses (as defined below) nor affects any Supervisory Authority’s or Data Subject’s rights under the Transfer Clauses or Data Protection Laws; and
  • At the termination of the Agreement, at Company’s election, delete or return the Personal Data to Company, except where prohibited by law.
• Subprocessing
  • Company acknowledges and agrees that LiveIntent may subcontract the provision of the Services to the subprocessors notified to Company https://support.liveintent.com/hc/en-us/articles/360000866243-LiveIntent-Partners-Subprocessors- (“Subprocessors”).  Any transfers of Personal Data to Subprocessors will be subject to contractual requirements to safeguard Personal Data substantially similar to those imposed on LiveIntent under this Addendum, and LiveIntent shall remain liable to Company for any breaches caused by Subprocessors;
  • LiveIntent shall provide an online resource, https://liveintent.com/lp/liveintent-technology-partners/, where Company may sign up to receive notifications of new Subprocessors and changes to existing Subprocessors (“Notification Service”).  If Company reasonably objects to LiveIntent’s change in or use of a new Subprocessor as notified via the Notification Service, Company shall notify LiveIntent promptly in writing within ten (10) business days after receipt of the information via the Notification Service.  The Parties agree that the process adopted under this Section 5.2 constitutes Company’s consent to new Subprocessors under Section 11.1 of the Transfer Clauses; and
  • If Company puts forward a reasonable objection to a new Subprocessor, LiveIntent agrees to engage in good faith discussions with Company to attempt to address Company’s objection.
• Repurposing. 
  • Unless otherwise directed by Company, LiveIntent will not use Collected Data that constitutes Personal Data for Repurposing, or disclose IO Details of Company or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii) of the Agreement.
• Cross-Border Transfer of Personal Data.Where Company provides Personal Data to LiveIntent in order for LiveIntent to provide the Services, LiveIntent shall comply with the terms of the Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries approved by European Commission Decision of 5 February 2010 and reproduced in Schedule 1 of this Addendum (the “Transfer Clauses”). For the purposes of the Transfer Clauses:
  • Company and LiveIntent agree to observe the terms of the Transfer Clauses without modification;
  • In case of any conflict between the terms of the Transfer Clauses and any other part of this Addendum or the Agreement, the Transfer Clauses shall prevail;
  • The names and addresses of Company and LiveIntent shall be considered to be incorporated into the Transfer Clauses;
  • The Parties’ signature to this Addendum shall be considered as signature to the Transfer Clauses;
  • Company and LiveIntent shall comply with the provisions of the Transfer Clauses in all cases where Personal Data which were originally exported in the circumstances described in this Section 6 (Cross-Border Transfer of Personal Data) are subsequently re-exported to another country;
  • If so required by the laws or regulatory procedures of any jurisdiction, the Parties shall execute or re-execute the Transfer Clauses as separate documents setting out the proposed transfers of Personal Data in such manner as may be required; and
  • In the event that the Transfer Clauses are amended, replaced, or otherwise invalidated by the European Commission or under the Data Protection Laws, the Parties shall work together in good faith to enter into any updated version of the Transfer Clauses or negotiate in good faith a solution to enable a transfer of the Personal Data to meet the requirements of Article 44 of the GDPR.

GDPR DATA PROTECTION ADDENDUM 

Schedule 1

Controller-to-Processor Transfer Clauses

 

• DEFINITIONS

For the purposes of the Clauses:

• ‘personal data’, ‘special categories of data’, ‘process/processing‘, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
• ‘the data exporter’ means the controller who transfers the personal data;
• ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
• ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
• ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
• technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
• DETAILS OF THE TRANSFER

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

• THIRD-PARTY BENEFICIARY CLAUSE

3.1 The data subject can enforce against the data exporter this Clause, Clause 4(b) to 4(i), Clause 5(a) to 5(e), and 5(g) to 5(j), Clause 6.1 and 6.2, Clause 7, Clause 8.2, and Clauses 9 to 12 as third-party beneficiary.

3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to 5(e) and 5(g), Clause 6, Clause 7, Clause 8.2, and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.3 The data subject can enforce against the sub-processor this Clause, Clause 5(a) to 5(e) and 5(g), Clause 6, Clause 7, Clause 8.2, and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

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

• OBLIGATIONS OF THE DATA EXPORTER

The data exporter agrees and warrants:

• that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
• that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
• that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
• that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
• that it will ensure compliance with the security measures;
• that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
• to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
• to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
• that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
• that it will ensure compliance with Clause (a) to (i).
• OBLIGATIONS OF THE DATA IMPORTER

The data importer agrees and warrants:

• to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
• that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
• that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
• that it will promptly notify the data exporter about:
• any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
• any accidental or unauthorised access, and
• any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
• to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
• at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
• to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
• that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
• that the processing services by the sub-processor will be carried out in accordance with Clause 11;
• to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
• LIABILITY

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

6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 6.1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.  The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 6.1 and 6.2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

• MEDIATION AND JURISDICTION

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

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

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

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

• COOPERATION WITH SUPERVISORY AUTHORITIES

8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

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

8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 8.2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

• GOVERNING LAW

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

• VARIATION OF THE CONTRACT

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.

• SUB-PROCESSING

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

11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in Clause 6.1 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 11.1 shall be governed by the law of the Member State in which the data exporter is established.

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

• OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA PROCESSING SERVICES

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

12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 12.1.

 

GDPR DATA PROTECTION ADDENDUM

APPENDIX 1 TO SCHEDULE 1

DESCRIPTION OF THE TRANSFERS (CONTROLLER TO PROCESSOR)

 

This Appendix forms part of the Transfer Clauses and must be completed and signed by the Parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

 

Data exporter [Briefly specify data exporter’s activities relevant to the transfer]

Is exporting data to data importer in order to enable data importer to place content and advertising (in an anonymous manner) to data exporter’s users as they visit websites across the Internet.

Data importer [Briefly specify data importer’s activities relevant to the transfer]

Data importer receives the data to drop cookies to the exporter’s users, read data from HTML tags in emails received by the exporter’s users, or to facilitate the placement of advertisements to exporter’s users as part of the Services. Dropping cookies and receiving information from HTML tags enables data segments to be placed into users’ browser cookies. Data importer will be enabled to place content and advertising (in an anonymous manner) to data exporter’s users as they visit websites across the Internet.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Users who have agreed to receive cookies or the placement of HTML tags, e.g. in the course of signing up to electronic newsletters.

Categories of data

The personal data transferred concern the following categories of data (please specify):

Hashed email addresses, cookie identifiers, mobile identifiers, and other device identifiers

Special categories of data

The personal data transferred concern the following special categories of data (please specify):

No personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or genetic data, biometric data or data concerning health or data concerning a natural person’s sex life or sexual orientation will be transferred.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

The data exporter will transfer the data to the data importer.

The data importer will store the data for the data exporter.

The data importer will place cookies to the users’ browsers to enable the data exporter to place content and advertising (in an anonymous manner) to Company’s users as they visit websites across the Internet.

Subject to the required Service, the data importer will collect and create data segments in order to optimize the advertising within a campaign.

 

GDPR DATA PROTECTION ADDENDUM

APPENDIX 2 TO SCHEDULE 1

This Appendix 2 forms part of the Transfer Clauses and must be completed and signed by the Parties.

Technical and organisational security measures implemented by the Data Importer in accordance with Clauses 4(d) and 5(c) in order to ensure a level of security appropriate to the risks to personal data include:

Processes for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing, including: 

• Information Security Policy: The data importer has a written information security policy in place that specifies the security standards it applies to protect the personal data it processes in accordance with these Clauses.  The information security policy mandates the use of appropriate technical and organisational security measures throughout the data importer’s organisation to protect personal data against unauthorised and unlawful processing and against accidental loss, damage or destruction. It further describes the measures to be taken, and individuals to be notified, in the event of an actual or suspected data or security breach.
• Risk Management: The data importer has risk management processes that are established and managed by organizational stakeholders. The risk management processes include periodic risk assessments that identify critical business processes, potential threats, and vulnerabilities; assign a risk rating to identified issues; document and communicate risks; and provide recommendations to reduce risk.
• Information Security Officer: The data importer has appointed a duly skilled, qualified and experienced employee with responsibility for ensuring the security of personal data processed by the data importer throughout its organization and for reviewing, maintaining and updating the data importer’s information security policy in accordance with best industry practice.
• Reporting: The data importer has in place a policy requiring reporting of any suspected policy violations, system intrusions, or other security incidents that might jeopardize the information or information systems owned or controlled by the data importer.
• Organizational Security Policy: The data importer has in place an organizational security policy that defines the roles and responsibilities of the information security team that operates at the strategic, tactical, and operational levels.
• Personnel Compliance: The data importer has in place policies that ensure the data importer’s employees understand what uses of technology and data are permitted by the data importer, including mandatory security and privacy awareness training for all employees and disciplinary processes to encourage compliance.

Measures to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services, including:

• Physical Security: All computer and network equipment used in the open areas of the data importer’s facilities are required to be physically secured with anti-theft devices. Access to data processing facilities is restricted to duly authorized employees and contractors who have been issued with security keys.  All system resources and supporting assets located in a facility that handle sensitive data are located in physically secure areas and isolated as necessary. Cameras and other electronic surveillance equipment are placed throughout facilities storing or handling sensitive information assets.
• Asset Management: The data importer has in place a policy which establishes the rules and guidelines managing information, hardware, and software assets throughout the lifecycle phases of an information technology asset.
• Change Control: The data importer has in place a change control policy to ensure that significant changes to processes and procedures are documented, including production system software, hardware, devices, facilities, networks, and communications links.
• Firewall and Anti-Virus Software: The data importer has in place appropriate firewall, anti-virus, anti-spyware and other anti-malware software and technologies on all networks and systems it uses to process personal data. 
• Portable Media: The data importer has in place a policy that restricts the use of unauthorized removable media with assets owned or used by the data importer. Any devices, discs, and other electronic storage media containing personal data are destroyed once no longer needed in a manner which makes access to the personal data stored on them impossible.  They are not to be disclosed to any party not authorised to process personal data unless the data previously stored on those media has been irretrievably destroyed.
• Access Controls: The data importer implements technical access controls that restrict access to personal data it processes to duly authorized employees and contractors only.  The data importer further maintains a log of all access to personal data on its systems by any individual.  Duly authorized employees and contractors are permitted to access personal data only to the extent necessary for the performance of their duties.  The data importer has appointed a system administrator with overall responsibility for granting, changing or voiding data access privileges to its data processing systems.
• Usernames / Passwords: Access to personal data is controlled through access privileges, usernames, and confidential passwords.  No two employees or contractors may share or use the same username and/or password.  Employees and contractors are required to change their passwords on a regular basis and at least once every six months.  All employee passwords are stored in encrypted format, and are at least eight characters long consisting of one uppercase letter, one lowercase letter, one numeral and one symbol.
• Incident Response: The data importer has in place an incident response policy for monitoring for threats, establishing incident-handling capabilities, creating and maintaining a security incident response team, and developing and maintaining an incident response plan. The incident response plan will establish procedures for identifying, responding to, assessing, and analysing information security threats.

Policies and procedures regarding the encryption of personal data:

• Encryption: All personal data processed by the data importer on behalf of the data exporter are stored and transmitted in encrypted format only, including personal data processed by the data importer on portable media or portable devices.

Policies and procedures to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident, including:

• Power Loss: The data importer’s data processing systems are protected against loss, destruction or damage of personal data due to failure or interference of any power supply.

 

Schedule 1 a)

Module Two: Transfer controller to processor 

 

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)(*1) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A. (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each ‘data importer’). 

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’). 

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

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

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

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

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e); 

(iii) Clause 9(a), (c), (d) and (e);

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e); 

(viii) Clause 18(a) and (b).

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

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union(*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, under the appropriate Module, or if:

(i) 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;

(ii) 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;

(iii) 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

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

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

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 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.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.(*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 sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

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

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

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

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

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

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a) 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.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards(*4);

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

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

 

Clause 15

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

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

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

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

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of the EU Member State in which the data exporter is established. Where the data exporter is not established in a EU Member State, the courts mentioned in Clause 18 (a) shall be those in Berlin, Germany.

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

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

 

     

Schedule 1 b)

Module Three: Transfer processor to processor 

 

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)(*5) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A. (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each ‘data importer’). 

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’). 

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

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

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

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

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); 

(iii) Clause 9(a), (c), (d) and (e);

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

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

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

(a) The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.

(b) The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.

(c) 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.

(d) 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(*6).

8.2 Purpose limitation

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

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union(*7) (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:

(i) 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;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;

(iii) 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

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

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

8.9 Documentation and compliance

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

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.

(c) The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.

(d) The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.

(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.

(f) 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.

(g) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a) The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.(*8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

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

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

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

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.

(b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a) 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.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards(*9);

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). The data exporter shall forward the notification to the controller.

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

Clause 15

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

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

The data exporter shall forward the notification to the controller.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). The data exporter shall forward the information to the controller.

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. The data exporter shall make the assessment available to the controller.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority and the controller of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

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

Clause 17

Governing law

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

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of the EU Member State in which the data exporter is established. Where the data exporter is not established in a EU Member State, the courts mentioned in Clause 18 (a) shall be those in Berlin, Germany.

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

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

ANNEX I

A. LIST OF PARTIES

Customer (controller or processor) will be the data exporter and LiveIntent (processor or subprocessor) will be the data importer under the Transfer Clauses. The activities relevant to the transfer of Personal Data under the Transfer Clauses relate to the reception of the Services provided by LiveIntent under the Agreement.

Contact person’s name, position and contact details for Customer are as provided in the Agreement. 

Contact person’s name, position, and contact details for LiveIntent are as provided in the Agreement.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Personal Data processed may concern, but is not limited to, the following categories of Data Subjects:

• Users who are current, past, and prospective Customers’ clients 
• Customer personnel who are authorized to use the Services

 

Categories of personal data transferred

Personal Data processed may concern, but is not limited to, the following categories of Personal Data:

• Hashed email addresses, cookie identifiers, mobile identifiers, and other device identifiers

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 personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or genetic data, biometric data or data concerning health or data concerning a natural person’s sex life or sexual orientation will be transferred.

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

Continuous basis 

Nature of the processing

The Personal Data transferred may be subject to the following basic processing activities:

• Receiving data, including collection, accessing, retrieval, recording, and data entry
• Holding data, including storage, organisation and structuring
• Using data, including analysing, consultation, testing, automated decision making, profiling, and anonymising
• Updating data, including correcting, adaptation, alteration, alignment and combination
• Protecting data, including restricting, encrypting, and security testing
• Sharing data, including disclosure, dissemination, allowing access or otherwise making available
• Returning data to the data exporter or data subject
• Erasing data, including destruction and deletion

Purpose(s) of the data transfer and further processing

The purpose of the transfer and further processing is for data importer to perform the Services under the Agreement with data exporter. The data importer receives data to drop cookies to the exporter’s users, read data from HTML tags in emails received by the exporter’s users, or to facilitate the placement of advertisements to exporter’s users as part of the Services. Dropping cookies and receiving information from HTML tags enables data segments to be placed into users’ browser cookies. Data importer will be enabled to place content and advertising to data exporter’s users as they visit websites across the Internet.

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

The data importer will retain the personal data as long as necessary in order to perform the services under the Agreement with the data exporter; provided, however, that the data importer will not retain personal data for more than 1 year.

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

The subject matter, nature and duration of the processing by sub-processors corresponds to the descriptions in this Annex I for data importer.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

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 shall act as competent supervisory authority.

The details of the competent supervisory authority can be viewed under https://edpb.europa.eu/about-edpb/about-edpb/members_en. 

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 shall act as competent supervisory authority.

The details of the competent supervisory authority can be viewed under https://edpb.europa.eu/about-edpb/about-edpb/members_en.

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 Berlin, Germany shall act as competent supervisory authority. 

ANNEX II

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

Technical and organisational security measures implemented by the data importer in accordance with the Clauses in order to ensure a level of security appropriate to the risks to personal data include:

Processes for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing, including: 

• Information Security Policy: The data importer has a written information security policy in place that specifies the security standards it applies to protect the personal data it processes in accordance with these Clauses.  The information security policy mandates the use of appropriate technical and organisational security measures throughout the data importer’s organisation to protect personal data against unauthorised and unlawful processing and against accidental loss, damage or destruction. It further describes the measures to be taken, and individuals to be notified, in the event of an actual or suspected data or security breach.
• Risk Management: The data importer has risk management processes that are established and managed by organizational stakeholders. The risk management processes include periodic risk assessments that identify critical business processes, potential threats, and vulnerabilities; assign a risk rating to identified issues; document and communicate risks; and provide recommendations to reduce risk.
• Information Security Officer: The data importer has appointed a duly skilled, qualified and experienced employee with responsibility for ensuring the security of personal data processed by the data importer throughout its organization and for reviewing, maintaining and updating the data importer’s information security policy in accordance with best industry practice.
• Reporting: The data importer has in place a policy requiring reporting of any suspected policy violations, system intrusions, or other security incidents that might jeopardize the information or information systems owned or controlled by the data importer.
• Organizational Security Policy: The data importer has in place an organizational security policy that defines the roles and responsibilities of the information security team that operates at the strategic, tactical, and operational levels.
• Personnel Compliance: The data importer has in place policies that ensure the data importer’s employees understand what uses of technology and data are permitted by the data importer, including mandatory security and privacy awareness training for all employees and disciplinary processes to encourage compliance.

Measures to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services, including:

• Physical Security: All computer and network equipment used in the open areas of the data importer’s facilities are required to be physically secured with anti-theft devices. Access to data processing facilities is restricted to duly authorized employees and contractors who have been issued with security keys.  All system resources and supporting assets located in a facility that handle sensitive data are located in physically secure areas and isolated as necessary. Cameras and other electronic surveillance equipment are placed throughout facilities storing or handling sensitive information assets.
• Asset Management: The data importer has in place a policy which establishes the rules and guidelines managing information, hardware, and software assets throughout the lifecycle phases of an information technology asset.
• Change Control: The data importer has in place a change control policy to ensure that significant changes to processes and procedures are documented, including production system software, hardware, devices, facilities, networks, and communications links.
• Firewall and Anti-Virus Software: The data importer has in place appropriate firewall, anti-virus, anti-spyware and other anti-malware software and technologies on all networks and systems it uses to process personal data. 
• Portable Media: The data importer has in place a policy that restricts the use of unauthorized removable media with assets owned or used by the data importer. Any devices, discs, and other electronic storage media containing personal data are destroyed once no longer needed in a manner which makes access to the personal data stored on them impossible.  They are not to be disclosed to any party not authorised to process personal data unless the data previously stored on those media has been irretrievably destroyed.
• Access Controls: The data importer implements technical access controls that restrict access to personal data it processes to duly authorized employees and contractors only.  The data importer further maintains a log of all access to personal data on its systems by any individual.  Duly authorized employees and contractors are permitted to access personal data only to the extent necessary for the performance of their duties.  The data importer has appointed a system administrator with overall responsibility for granting, changing or voiding data access privileges to its data processing systems.
• Usernames / Passwords: Access to personal data is controlled through access privileges, usernames, and confidential passwords.  No two employees or contractors may share or use the same username and/or password.  Employees and contractors are required to change their passwords on a regular basis and at least once every six months.  All employee passwords are stored in encrypted format, and are at least eight characters long consisting of one uppercase letter, one lowercase letter, one numeral and one symbol.
• Incident Response: The data importer has in place an incident response policy for monitoring for threats, establishing incident-handling capabilities, creating and maintaining a security incident response team, and developing and maintaining an incident response plan. The incident response plan will establish procedures for identifying, responding to, assessing, and analysing information security threats.

Policies and procedures regarding the encryption of personal data:

• Encryption: All personal data processed by the data importer on behalf of the data exporter are stored and transmitted in encrypted format only, including personal data processed by the data importer on portable media or portable devices.

Policies and procedures to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident, including:

• Power Loss: The data importer’s data processing systems are protected against loss, destruction or damage of personal data due to failure or interference of any power supply.

 

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter

 The measures are substantially similar to those identified above.  

      

Schedule 2

Swiss Addendum to the Transfer Clauses

 

Where Section 7.2 of the Addendum applies, the Transfer Clauses are amended by the following provisions in order for the Transfer Clauses to be suitable for ensuring an adequate level of protection for such transfer in accordance with Article 6(2)(a) of the FADP:

 

1. “FDPIC” means the Swiss Federal Data Protection and Information Commissioner.
2. “Revised FADP” means the revised version of the FADP of 25 September 2020, which is scheduled to come into force on 1 January 2023.
3. The term “EU Member State” must not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility for suing their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c).
4. The Transfer Clauses also protect the data of legal entities until the entry into force of the Revised FADP.
5. The FDPIC shall act as the “competent supervisory authority” insofar as the relevant data transfer is governed by the FADP. 

Schedule 2

UK Addendum to the Transfer Clauses

1. Where Section 7.3 of the Addendum applies, this UK Addendum to the Transfer Clauses shall also apply.
2. Where this UK Addendum uses terms that are defined in the Transfer Clauses those terms shall have the same meaning as in the Transfer Clauses. In addition, the following terms have the following meanings:

a. This “UK Addendum” means this Addendum to the Transfer Clauses.

b. The “Annex” means the Transfer Clauses.

c. “UK Data Protection Laws” means all laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. 

d. “UK GDPR” means the United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018. 

e. “UK” means the United Kingdom of Great Britain and Northern Ireland.

3. This UK Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 UK GDPR.

4. This UK Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws. 

5. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this UK Addendum has been entered into.

Hierarchy

6. In the event of a conflict or inconsistency between this UK Addendum and the provisions of the Transfer Clauses or other related agreements between the Parties, existing at the time this UK Addendum is agreed or entered into thereafter, the provisions which provide the most protection to Data Subjects shall prevail.

Incorporation of the Transfer Clauses

7. This UK Addendum incorporates the Transfer Clauses which are deemed to be amended to the extent necessary so they operate:

(a) for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer; and 

(b) to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR.

8. The amendments required by Section 7 above, include (without limitation):

(a) References to the “Transfer Clauses” means this UK Addendum as it incorporates the Transfer Clauses.

(b) Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”

(c) References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.

(d) References to Regulation (EU) 2018/1725 are removed.

(e) References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”.

(f) Clause 13(a) and Part C of Annex I are not used; the “competent supervisory authority” is the Information Commissioner.

(g) Clause 17 is replaced to state “These Transfer Clauses are governed by the laws of England and Wales”.

(h) Clause 18 is replaced to state: “Any dispute arising from these Transfer Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”

(i) The footnotes to the Transfer Clauses do not form part of the UK Addendum.

 

Amendments to this UK Addendum

9. The parties may agree to change Clause 17 and/or 18 to refer to the laws and/or courts of Scotland or Northern Ireland.

10. The parties may amend this UK Addendum provided it maintains the appropriate safeguards required by Art 46 UK GDPR for the relevant transfer by incorporating the Transfer Clauses and making changes to them in accordance with Section 7 above.

 

Executing this UK Addendum

 

By entering into the Addendum, the parties agree to be bound by the UK Addendum to the Transfer Clauses.

 

(*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 of 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 sub-processor 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.

 

(*5) 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 of 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.

 

(*6) See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.

 

(*7) 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 purposes of these Clauses.

 

(*8) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

 

(*9) 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.