THOROPASS, INC. DATA PROCESSING ADDENDUM (DPA)

Effective Date: December, 2023

1. Introduction. This DPA between Thoropass Inc. (“Thoropass” or “Service Provider”) and Customer shall apply to all Processing of Customer Personal Data by Service Provider to provide the Services under the Thoropass Master Services Agreement (“Agreement”) and/or any separate agreements signed the parties, including any applicable Statement of Work (SOW) (collectively, “Agreements”).
2. Order of Precedence. Should there be a conflict between this DPA, and the Agreements, this DPA will govern. 
3. Definitions. In this DPA, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
   1. Applicable Laws means all statutes, laws, rules, regulations, ordinances, and the like of any federal, international, city, state, provincial, or local government or governmental agency applicable to Services under the Agreement including without limitation Data Protection Laws.
   2. Data Protection Laws means Applicable Laws relating to privacy, security, or protection of Personal Data, as may be defined by such laws, including the EU General Data Protection Regulation (Regulation 2016/679) (GDPR); the California Consumer Protection Act (CCPA), and the California Privacy Rights Act (CPRA) and any subsequent supplements, amendments, or replacements to the same. 
   3. Confidential Information shall have the meaning set forth in the Agreement.
   4. Customer Personal Data means any Personal Data provided by or made available by Customer to Service Provider or collected by Service Provider on behalf of Customer which Service Provider Processes to perform the Services. 
   5. Data Breach means any unauthorized interference with the availability of, or any unauthorized, unlawful or accidental loss, misuse, destruction, alteration, acquisition of, access to, disclosure of, or damage to Customer Personal Data or any other non-public or confidential data received from Customer, or any other unauthorized Processing of Personal Data.
   6. Data Subject means an identified or identifiable natural person about whom Personal Data is Processed under this Agreement or as otherwise defined (including under similar terms such as “consumer”) under Data Protection Laws.
   7. Personal Data means any information processed by Service Provider, in connection with the performance of Services, including data that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household or with a particular individual’s or household’s device; or any inferences drawn therefrom. Personal Data includes, but is not limited to, name, alias, postal address, social security number, identification number, biometric identifiers, credit/debit card information, driver’s license number (or other unique government identifier, such as passport or military ID), phone number, physical address, email address, details of orders and fulfilments, location data, employment or educational information, online identifiers such as internet protocol addresses, cookie or other unique identifiers, criminal background check, work authorization, or to one or more factors specific to the physical, physiological, genetic, mental, economic, financial, cultural, sexual orientation, union status, or social identity of the  individual, or as otherwise defined (including under similar terms such as personal information, Personal Data, personal health information, personally identifiable information, and sensitive personal information) under Data Protection Laws.
   8. Process, processed, or processing means the collection, receipt, recording, organization, structuring, alteration, use, transmission, access, sharing, provision, disclosure, distribution, copying, transfer, storage, management, retention, deletion, combination, restriction, summarizing, aggregation, correlation, inferring, derivation, analysis, adaptation, retrieval, consultation, destruction, disposal or other handling of Personal Data.
   9. Services means services provided by Service Provider under the Agreements. 
   10. Sub-processor means any person or entity engaged by Service Provider (or other Processor) that Processes Customer Personal Data to help provide the Services.
   11. The terms Controller or Data Controller and Processor or Data Processor and Business and Service Provider shall have the same meaning as in Data Protection Laws. 
4. Data Ownership/Licenses 
   1. For purposes of this DPA, as between the parties, Customer retains all right, title, and interest in Customer Personal Data. 
   2. Customer grants to Service Provider a worldwide, perpetual, fully paid-up right and license under all applicable intellectual property laws to make, use, sell, offer to sell, copy, distribute, display, perform, organize, create derivative works from, and otherwise Process, the Customer Personal Data, and to sublicense all the foregoing rights to Sub-processors, solely as necessary to perform the Services under the Agreement and as expressly set forth, and subject to restrictions and obligations, in this DPA.
5. General Compliance Obligations
   1. Service Provider certifies that it shall comply with, and assist Customer in complying with, its applicable obligations regarding Customer Personal Data under this DPA and the Data Protection Laws. 
   2. Service Provider shall provide reasonable information requested by Customer to demonstrate compliance with the obligations set forth in this DPA. 
   3. Service Provider shall not perform its obligations under this Agreement in such a way as to knowingly cause Customer to breach any of its obligations regarding Customer Personal Data under Data Protection Laws.
   4. Service Provider shall contractually ensure that all Service Provider employees, agents, officers, consultants, Processors, Sub-processors and any third party authorized to Process Customer Personal Data are subject to written confidentiality agreements or are under an appropriate statutory obligation of confidentiality.
   5. Service Provider will contractually ensure that Service Provider’s Processors, Sub-processors and any other third parties retained by Service Provider that Process Personal Data provide substantially the same level of protection for Customer Personal Data as provided in this DPA and as required by Data Protection Laws.
   6. Solely to the extent that Service Provider’s Processing of Customer Personal Data is subject to the CCPA, the terms of Exhibit 5 (California Consumer Privacy Act Service Provider Addendum) shall apply to such Processing.
6. Scope of Processing 
   1. Roles of Parties. The parties acknowledge and agree that with respect to processing of Customer Personal Data, Service Provider is a Processor and a Service Provider and Customer is a Controller and Business, except that if Customer is a Processor in which case Service Provider is a Sub-processor.  If Customer is a Processor of Customer Personal Data, Customer represents and warrants that Customer’s instructions and Processing of Customer Personal Data, including its appointment of Service Provider as a Sub-processor, have been authorized by the respective Controller.
   2. Details of Processing. Service Provider shall provide to Customer in writing appropriate and accurate information regarding its Processing of Customer Personal Data Processed in connection with the Services the categories of Customer Personal Data, how such data is collected and Processed, and the purposes for which such data is used, in a manner appropriate to allow Customer to meet its record keeping and notice and consent obligations under Data Protection Laws, including information as set forth in Exhibit 1 (Processing Details) or in a Statement of Work.
   3. Customer Instructions and Restrictions on Processing
      1. Service Provider shall use, retain, and disclose Customer Personal Data for the specific business purpose of providing the Services and in accordance with Customer’s instructions, including as described in the Agreement. Service Provider will inform Customer if, in Service Provider’s reasonable opinion, any of Customer’s instructions infringes any Data Protection Laws.
      2. Service Provider shall have rights to use Customer Personal Data solely (i) to the extent necessary or appropriate to (a) perform its obligations under the Agreement; (b) operate, manage, test, maintain and enhance the Service including as part of its business operations; (c) to create and disclose aggregate statistics about Customer Personal Data and the Service in a manner that prevents individual identification of the Customer, or the individual subjects of Customer Personal Data; and/or (d) protect the Service from a threat to the Service, Customers, Customer Personal Data, and Service Provider’s systems; or (ii) if required by court order of a court or authorized governmental agency, provided that prior notice first be given to the Customer unless such notice is prohibited by law or court order; or (iii) as otherwise expressly authorized by the Customer.
7. Data Security 
   1. Data Security Obligations. Service Provider will implement and maintain commercially reasonable administrative, technical, and physical safeguards, as described in Exhibit 2.
   2. Data Breach.
      1. If Service Provider discovers or learns of a Data Breach affecting Customer Personal Data, Service Provider shall take reasonable, appropriate, and prompt steps to: (a) investigate, mitigate, and remedy the Data Breach and prevent further Data Breaches; (b) notify Customer of such Data Breach no later than seventy-two (72) hours after discovery of such Data Breach; (c) furnish to Customer necessary and relevant details of the Data Breach as may be available; (d) assist Customer, as needed, in its investigation, mitigation, and remedying of the Data Breach; and (e) provide information and assist Customer, as needed, in meeting Customer’s legal obligations, including any applicable obligations to notify individuals affected by the Data Breach.
      2. Unless prohibited by an applicable law or court order, Service Provider shall notify Customer of any third-party legal process relating to any Data Breach, including, but not limited to, any legal process initiated by any governmental entity.
      3. Service Provider’s cooperation or obligation to report or respond to Data Breaches under this DPA shall not be deemed an acknowledgment by Service Provider of any fault or liability of Service Provider with respect to a Data Breach.
   3. Security Audit. If and to the extent Service Provider processes, handles, distributes or otherwise makes available, or stores Customer Personal Data as part of the Services, then Service Provider  will ensure that the facilities that process, handle and/or store such information are audited annually against SOCII Type 2 (or its current equivalent) standards. The summary report of any security audit will be provided to Customer following the completion of such audit. Customer agrees to treat such information provided by Service Provider in response to request under this Section 7.3 as Service Provider’s Confidential Information.
8. Data Protection Compliance Assistance. Upon Customer request, Service Provider will provide reasonable assistance and information to Customer regarding its Processing of Customer Data where such means and assistance are not already in Customer control or possession and as required by Data Protection Laws for the following. 
   1. Regulator enquiries. Investigation or inquiries from government entities or regulators regarding Processing of Customer Personal Data by Service Provider.
   2. Audits or assessments. Audits or assessments to be requested no more than annually in the form of information reasonably necessary to demonstrate compliance with the requirements of this DPA, including (i) response to questionnaires; and (ii) reasonable assistance and cooperation of Service Provider’s relevant staff.
   3. Data Subject Rights. Information needed for Customer to respond to Data Subject Requests. 
   4. DPIAs. Information needed for Customer’s records of processing activities and data protection impact assessments.
9. Notice Regarding Third Party Requests and Inquiries  Service Provider will take reasonable steps to notify Customer if Service Provider receives any of the following in connection with its Processing of Customer Data: (i) any requests from a Data Subject, including individual opt-out requests, requests for access and/or deletion and all similar individual rights requests; or (ii) any request from a government entity or regulator provided such notice is not prohibited by law or court order.
10. Sub-processors 
    1. Service Provider may provide access to or transfer any Customer Personal Data to any third party (including any affiliates, group companies, or subcontractors) with the consent of Customer. Customer consents to such access or transfer to Service Provider’s Sub-processors.
    2. When requested by Customer, Service Provider will make available an up-to-date list of current Sub-processors (the current version of which is attached as Exhibit 3 and Customer authorizes Service Provider to use any such Sub-processor to process Customer Personal Data unless Customer objects within 30 days of such list, or any updates to the list, being made available to Customer. Any such objection must be based on reasonable grounds that any such Sub-processor is unable to adequately protect the Customer Personal Data in accordance with the Agreement. If such objection is justified, Customer and Service Provider will work together to find a mutually acceptable resolution to such objection, and if unsuccessful, Customer’s sole remedy is termination of the relevant Services under the terms of the Agreement.
    3. Where a third party appointed by Service Provider to process Customer Personal Data in performance of the Services fails to fulfill its obligations under any sub-processing agreement or Data Protection Laws, Service Provider will remain fully liable to Customer for the fulfillment of its obligations under this DPA and the Agreement. 
    4. Service Provider will ensure that it has a written agreement in place with all Sub-processors which contains obligations on the Sub-processors which are no less protective of Customer Personal Data than the obligations on the Service Provider under this DPA.  
11. Location of Processing Service Provider may Process Customer Personal Data in the locations listed in Exhibit 1 and in the locations specified in connection with authorized Sub-processors (Approved Regions) provided Service Provider cooperates with the Customer to comply with applicable data transfer restrictions and obligations required by Data Protection Laws. Service Provider will not Process such Customer Personal Data outside of the Approved Regions without Customer’s knowledge and written authorization (where Customer authorization received by email or other electronic means is acceptable). 
12. Transfers to Third Countries. 
    1. With regard to countries, regions or territories with Data Protection Laws requiring a mechanism for valid export of Customer Personal Data (such countries, regions, or territories, Limited Transfer Region(s) and such data Limited Transfer Data), Service Provider may not receive and Process such Limited Transfer Data outside of such Limited Transfer Regions unless it or its Sub-processors take measures to adequately protect such data consistent with applicable Data Protection Laws. Such measures may include to the extent available and applicable under such laws:
       1. Processing in a country, a territory, or one or more specified sectors that are considered under applicable Data Protection Laws as providing an adequate level of data protection;
       2. The parties’ agreement to enter into and comply with the Standard Contractual Clauses in Exhibit 4 and any successors or amendments to such clauses or such other applicable contractual terms adopted and approved under Data Protection Laws;
       3. Processing in compliance with Binding Corporate Rules in accordance with Data Protection Laws; or
       4. Implementing any other data transfer mechanisms or certifications approved under Data Protection Laws, including, as applicable, the EU-US Data Privacy Framework (EU-US DPF), the UK Extension to the EU-US Data Privacy Framework, and the Swiss-US Data Privacy Framework (Swiss-US DPF).
    2. To the extent that any substitute or additional appropriate safeguards or mechanisms under any Data Protection Laws of Limited Transfer Regions are required to transfer data from a Limited Transfer Region, as applicable, to any third country, the parties agree to implement the same as soon as practicable and document such requirements for implementation in an attachment to this DPA governing the parties’ Processing of Limited Transfer Data.
13. General Terms 
    1. Limitation of Liability. Except as may be specifically required under the terms of any individual Agreement and solely with respect to liability arising under such Agreement, (a) in no event will either party be liable for any indirect, incidental, consequential, punitive, special or exemplary damages, whether or not such damages are foreseeable or a party has been advised of the possibility thereof, and (b) in no event will either party’s maximum aggregate liability for damages arising from this DPA exceed US$2,000,000.  For the avoidance of doubt, nothing herein is intended to expand or relieve any limitation of liability set forth in the Agreement.
    2. Indemnification. Service Provider and Customer shall each indemnify, defend and hold harmless each other, and their respective directors, officers, employees and agents (and successors, heirs and assigns) (Representatives) against any liability, damage, loss, or expense (including reasonable attorneys’ fees and costs) (Liabilities) incurred by such indemnifying party as a result of a claim by a data subject or an investigation by a government entity or regulator to the extent arising from a breach of any obligations or restrictions of this DPA by the indemnitor (Claim).  The indemnified party will provide the indemnitor with prompt notice of any Claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure) and at the indemnitor’s expense, provide assistance reasonably necessary to defend such Claim.  The indemnitor will not enter into a settlement that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed.
    3. Notices.  Unless expressly stated otherwise in the Agreement, all notices under this DPA will be in writing and delivered by email, certified mail (return receipt requested), or express courier (with confirmation of delivery). The notice will be deemed given and will be effective upon receipt: (a) when it is delivered to a party personally; (b) upon receipt if sent certified mail, return receipt requested; or (c) when sent by a nationally recognized overnight courier service (with confirmation of delivery.
    4. Retention & Deletion of Customer Personal Data. Upon Customer’s written request, or upon termination or expiration of the Agreement, Service Provider will delete all Customer Personal Data under Service Provider’s possession or control or provide Customer ability to delete such Customer Personal Data directly through tools or functionality made available by Service Provider; excepting (a) where deletion is not permitted under Applicable Laws (including Data Protection Laws) or the order of a governmental or regulatory body; (b) where Service Provider retains such data for internal record keeping need for compliance with any legal obligations; and (c) where Service Provider’s then-current data retention or similar back-up system stores Customer Personal Data provided such data will remain protected in accordance with the measures described in the Agreement and this DPA.
    5. Termination
       1. Deletion or Return of Customer Personal Data. Upon termination or expiration of the Agreement, Service Provider will, upon request of Customer prior to termination or expiration, and to the extent not already in Customer’s possession or control, provide a copy of all Customer Personal Data in Service Provider’s possession to the Customer. Upon written verification from Customer or Customer’s receipt of such Customer Personal Data, or absent such request, Service Provider shall promptly destroy such data in accordance with Section 10.4. 
       2. Survival. The provisions of this DPA that, by their terms, require performance after the termination or expiration of this DPA, or have application to events that may occur after the termination or expiration of this DPA, will survive the termination or expiration of this DPA, including Sections 2, 3, and 13.  
    6. Governing Law; Conflicts of Law; Severance. Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses (if applicable), the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement (without reference to its conflict of laws requirements), unless otherwise required by Data Protection Laws. To the extent any court or governmental entity with competent jurisdiction determines that a provision of this DPA is invalid or unenforceable, the parties agree and intend that such provision should be (a) amended solely as necessary to bring it back into force in a manner consistent with the parties’ manifest intent, or if that is not possible (b) severed from the DPA in a manner to give maximum legal force and effect to the remaining provisions.

IN WITNESS WHEREOF, this Addendum is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.

[Customer]

Signature ______________________________

Name _________________________________

Title __________________________________

Date Signed ____________________________

[Service Provider]

Signature ______________________________

Name _________________________________

Title __________________________________

Date Signed ____________________________

EXHIBIT 1

 DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

Subject matter of the Processing of Customer Personal Data 

The subject matter of the Processing of Customer Personal Data is for providing the Services, including audit readiness, compliance and monitoring and integration platform services on behalf of the customer, as set out in the Master Services Agreement and any applicable States of Work.

Duration of the Processing of Customer Personal Data

Service Provider will retain and process Customer Personal Data for as long as necessary to provide the services or as or as defined by the Master Services Agreement.

The nature and purpose of the Processing of Customer Personal Data

The nature and purpose of the processing of Customer Personal Data is to provide the Services, including audit readiness, compliance and monitoring and integration platform services on behalf of the customer, as set out in the Master Services Agreement and any applicable Statements of Work.

The types of Customer Personal Data to be Processed

Customer Personal Data could be any personal data contained in the information Customer provides to the service, such as Employment Data, Company Strategy Data, Human Resources, Cloud and / or Platform Data. For example, such information could include personal information of Customer employees, including first and last name, business email address, business phone number, employment start and end dates, or other information.

The Types of Sensitive Customer Personal Data to be Processed 

See above. Sensitive Customer Personal Data is not specifically sought or requested as part of providing the Services. However, it is possible that the Customer Personal Data supplied to Service Provider could include Sensitive Customer Personal Data.

As with all Customer Personal Data, access to data is limited to business need only, data is encrypted in transit and at rest, and data is replicated to a separate data store.

The categories of Data Subjects to whom the Customer Personal Data relates

Customer Personal Data could relate to Customer employees, partners, vendors, customers / end-users, or other business contacts. 

The frequency of the transfer of Customer Personal Data from Customer to Service Provider 

Data can be uploaded on an as needed basis to the customer instance on the Thoropass platform.

Location of Processing of Customer Personal Data by Service Provider

Customers’ Personal Data is Processed by Service Provider in the United States. See also the Sub-processor list in Exhibit 3.

EXHIBIT 2

TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF COMPANY PERSONAL DATA

Service Provider will implement and maintain commercially reasonable administrative, technical, and physical safeguards, including procedures and practices commensurate with the level of sensitivity of the Customer Personal Data and the nature of its activities under the Agreement, to protect the security, confidentiality, and integrity of Customer Personal Data Processed by Service Provider or in its possession and control including such safeguards (a) designed to protect the security of systems upon which such data is Processed; and (b) designed to prevent a Data Breach. 

Service Provider’s personnel will not process Customer Personal Data without authorization. Personnel are obligated to maintain the confidentiality of any Customer Personal Data and this obligation continues even after their engagement ends.

Data is encrypted both at rest and in transit by TLS 1.2 or greater.  This includes all databases, data folders and / or email.

Least privilege is employed through various mechanisms, whether group or individual entitlement to systems or data stores.  Access is reviewed on a quarterly basis or as materially necessary.

All services in cloud platforms run in a least privileged state, compliance is validated by various tools within the cloud providers platform.  Should a service fall out of compliance, it is immediately alerted for an engineer to review and resolve.

All company endpoints are centrally managed, including disk encryption, idle session time-out, firewall enabled, USB write blocking and anti-virus / anti-malware installed.  Furthermore, the devices are subject to centralized patching.

The platform and supporting services are constantly monitored for both vulnerabilities, misconfigurations and capacity and performance issues.  Events which reach a predefined threshold, are sent to an alerting console which alerts the appropriate party to review and resolve.

User identification and authorization is leveraged through Rippling for corporate services and Okta for customer facing platform.

Security, Privacy and Risk Governance is run by the Chief Information Security Officer, and representative delegates. 

Thoropass undergoes an annual SOC2 Type 2 review by an accredited AICPA audit firm.

Lastly, Thoropass requires its sub-processors to implement and maintain reasonable administrative, technical, and physical safeguards, to protect the security, confidentiality, and integrity of any Customer Personal Data it may process in the course of providing services to Thoropass.

EXHIBIT 3

SUB-PROCESSORS

This list identifies the Sub-processors approved to process Customer Personal Data to perform the Services.

Describe for each Sub-Processor:

Company Name

Contact person’s name, position, & contact details

Company address (location(s) of processing)

Services provided (description of subject matter, nature of Processing of Customer Personal Data including clear delimitation of responsibilities)

Duration of Processing of Customer Personal Data

EXHIBIT 4 

STANDARD CONTRACTUAL CLAUSES

The parties agree that Limited Transfer Data transferred between and among the parties shall be subject to the standard contractual clauses to the extent applicable.

(A) The parties acknowledge the importance of the protection of Personal Data and the legal restrictions on international transfers of Personal Data.

(B) Accordingly, the parties agree to abide by the GDPR, UK DPA 2018, and Swiss DPA, and other applicable Data Protection Laws of Limited Transfer Regions recognizing the Standard Contractual Clauses or similar principles, as applicable, and enter into these standard contractual clauses to ensure that Customer Personal Data transfers outside any Limited Transfer Regions to any third country other than a country, region, or territory that the relevant data authority has determined to offer an adequate level of data protection are lawful and subject to adequate data protections. To the extent Customer Personal Data is subject to Article 3(2) of the GDPR, this Exhibit 4 shall not apply.

1. CLARIFICATION OF DEFINITIONS & TERMS

(A) The terms “data controller” or “controller,” “data exporter,” “data importer,” “data processor” and “Personal Data” shall have the meaning under the GDPR, UK DPA 2018, Swiss DPA, or applicable Data Protection Laws of Limited Transfer Regions as applicable. 

(B) For Limited Transfer Regions outside the EU, references to the General Data Protection Regulation will be replaced by applicable Data Protection Laws of the respective Limited Transfer Regions.

(C) Section 1 Clause 1 (a) of the Standard Contractual Clauses (Definition of Data Importer): The “data importer” means Service Provider.

(D) Section 1 Clause 1 (a) of the Standard Contractual Clauses (Definition of Data Exporter):  The “data exporter” means Customer.

(E) With respect to objections to subprocessors under Section 1 Clause 9, the parties will work together to find a mutually acceptable resolution to such objection, and if unsuccessful, Customer’s sole remedy is termination of the relevant Services under the terms of the Agreement

2. APPLICABLE MODULES

With respect to Processing of Customer Personal Data,

1. Customer is a Data Exporter and Controller, Service Provider is a Data Importer and Processor, and therefore the Module 2 terms of the Standard Contractual Clauses shall apply – except to the extent that Customer is a Processor, in which case Service Provider is a Sub-processor and the Module 3 terms shall apply.
2. References to Modules 1 and 4 in the Standard Contractual Clauses shall not apply and language applicable solely to these modules has been omitted from this Exhibit 4. 
3. AMENDMENTS OR UPDATES 

The parties agree that to the extent that any additional appropriate safeguards under Data Protection Laws of Limited Transfer Regions recognizing the Standard Contractual Clauses or similar principles are required to export data to any third country, or to the extent that the Standard Contractual Clauses are substituted or replaced or not recognised under any such law, the parties agree to either promptly implement the same or agree to use another acceptable method for transfer of such data and promptly amend this Exhibit 4 as necessary to comply with such requirements.

4. CONFLICTS

If the terms of the Agreement or the DPA conflict with the Standard Contractual Clauses, the terms of the Standard Contractual Clauses will prevail. 

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1 – Purpose and scope

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

1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

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

3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
4. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2 – Effect and invariability of the Clauses

1. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3 – Third-party beneficiaries

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

1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
2. Clause 8 – Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
3. Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
4. Clause 12(a), (d) and (f);
5. Clause 13;
6. Clause 15.1(c), (d) and (e);
7. Clause 16(e);
8. Clause 18(a) and (b).
9. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4 – Interpretation

1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5 – Hierarchy

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

Clause 6 – Description of the transfer(s)

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

Clause 7 – Docking clause [Optional]

1. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8 – Data protection safeguards

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

MODULE TWO: Transfer controller to processor

8.1   Instructions

1. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2   Purpose limitation

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

8.3   Transparency

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

8.4   Accuracy

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

8.5   Duration of processing and erasure or return of data

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

8.6   Security of processing

1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
2. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7   Sensitive data

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

8.8   Onward transfers

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

1. 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;
2. 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;
3. the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
4. 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

1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
2. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
3. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
4. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
5. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

MODULE THREE: Transfer processor to processor

8.1   Instructions

1. The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
2. The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
3. The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
4. The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.

8.2   Purpose limitation

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

8.3   Transparency

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

8.4   Accuracy

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

8.5   Duration of processing and erasure or return of data

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

8.6   Security of processing

1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
2. The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7   Sensitive data

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

8.8   Onward transfers

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

1. 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;
2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
3. the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
4. 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

1. The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
2. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.
3. The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
4. The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
5. Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
6. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

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

Clause 9 – Use of sub-processors

MODULE TWO: Transfer controller to processor

1. OPTION 2: GENERAL WRITTEN AUTHORIZATION: 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 30 in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
3. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
4. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.
5. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

MODULE THREE: Transfer processor to processor

1. OPTION 2: GENERAL WRITTEN AUTHORIZATION: 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 [Specify time period] in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s)..
2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
3. The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
4. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.

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

Clause 10 – Data subject rights

MODULE TWO: Transfer controller to processor

1. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.
2. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

MODULE THREE: Transfer processor to processor

1. The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorized to do so by the controller.
2. The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.

Clause 11 – Redress

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

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

2. 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.
3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
   1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
   2. refer the dispute to the competent courts within the meaning of Clause 18.
4. The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12 – Liability

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

1. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
2. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
3. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
4. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
6. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13 – Supervision

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

1. [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

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

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

Clause 14 – Local laws and practices affecting compliance with the Clauses

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

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

1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
3. any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

3. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]
6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three:, if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15 – Obligations of the data importer in case of access by public authorities

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

15.1   Notification 

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

1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

[For Module Three: The data exporter shall forward the notification to the controller.]

2. 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.
3. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
4. 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.
5. 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 minimization

1. The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
2. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]
3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16 – Non-compliance with the Clauses and termination

1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
2. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
   1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
   2. the data importer is in substantial or persistent breach of these Clauses; or
   3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

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

4. 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.
5. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17 – Governing law

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

OPTION 1: These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of The Republic of Ireland (specify Member State).

Clause 18 – Choice of forum and jurisdiction

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
2. The Parties agree that those shall be the courts of The Republic of Ireland (specify Member State).
3. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
4. The Parties agree to submit themselves to the jurisdiction of such courts.

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APPENDIX

EXPLANATORY NOTE: It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

________________________________________

ANNEX I

A.   LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name: …

Address: …

Contact person’s name, position and contact details: …

Activities relevant to the data transferred under these Clauses: …

Signature and date: …

Role (controller/processor):  Controller

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name:  Thoropass, Inc.

Address: 228 Park Ave S., PMB 41082 New York, NY 10003, United States of America 

Contact person’s name, position and contact details: …

Activities relevant to the data transferred under these Clauses: …

Signature and date: …

Role (controller/processor): Processor

B.   DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred.  

See Exhibit 1 of the Data Protection Addendum.

Categories of personal data transferred.  

See Exhibit 1 of the Data Protection Addendum

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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.  

See Exhibit 1 of the Data Protection Addendum

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

See Exhibit 1 of the Data Protection Addendum

Nature of the processing

See Exhibit 1 of the Data Protection Addendum

Purpose(s) of the data transfer and further processing

See Exhibit 1 of the Data Protection Addendum

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

See Exhibit 1 of the Data Protection Addendum

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

See Exhibit 3 of the Data Protection Addendum

C.   COMPETENT SUPERVISORY AUTHORITY

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

The Data Protection Commission of the Republic of Ireland, unless otherwise specified herein

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ANNEX II
TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

MODULE TWO: Transfer controller to processor

EXPLANATORY NOTE:  The technical and organizational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

See Exhibit 3 of the Data Protection Addendum for description of the technical and organizational measures.

_______________________________________

ANNEX III
LIST OF SUB-PROCESSORS

MODULE TWO: Transfer controller to processor

EXPLANATORY NOTE: This Annex must be completed for Modules Two and Three, in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).

Purposefully omitted as not applicable based on the general authorization of sub-processors under Clause 9(a). See Exhibit 3 of the Data Protection Addendum for a list of sub-processors and details.

EXHIBIT 5

CALIFORNIA CONSUMER PRIVACY ACT SERVICE PROVIDER ADDENDUM

This CCPA Data Protection Addendum (“CCPA Addendum“) forms part of the Data Protection Addendum (“DPA“) between: (i) Thoropass, Inc. (“Service Provider“); and (ii) Company. 

The terms used in this CCPA Addendum shall have the meanings set forth in this CCPA Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the DPA. The terms and conditions of this CCPA Addendum are in addition to those of the DPA, thus both the DPA and this CCPA Addendum shall apply; provided, however, that in the event of a conflict between the terms and conditions of the DPA and those of this CCPA Addendum, this Addendum shall prevail.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the DPA.

1.  Definitions

In this CCPA Addendum, the following terms shall have the meanings set out below and similar terms shall be construed accordingly:

1.1 CCPA is the California Consumer Privacy Act, including as amended by the California Privacy Rights Act when those amendments come into effect. 

1.2 Sell or selling means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s Personal Information by the business to another business or a third party for monetary or other valuable consideration.  

1.3 Share or sharing means sharing, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to a third party for cross-context behavioral advertising, whether or not for monetary or other valuable consideration, including transactions between a business and a third party for cross-context behavioral advertising for the benefit of a business in which no money is exchanged.

1.4 Cross-context behavioral advertising means the targeting of advertising to a consumer based on the consumer’s personal information obtained from the consumer’s activity across businesses, distinctly-branded websites, applications, or services, other than the business, distinctly-branded website, application, or service with which the consumer intentionally interacts.

2. Roles of the Parties 

With respect to the provision of the Services under the Thoropass Master Services Agreement, Thoropass shall be “service provider” and Customer shall be a “business” as those terms are defined in the CCPA.   

3. Data Processing Terms 

With respect to Personal Data relating to residents of the State of California subject to the CCPA, the following terms shall apply:

3.1 Service Provider shall not Sell or Share Customer Personal Data, nor use, retain, or disclose Customer Personal Data outside of its direct business relationship with the Customer or for any other purpose except as required by law.

3.2 Service Provider shall not combine the Customer Personal Data with Personal Data which it receives from other sources, including the information collected from Service Provider’s independent interaction with the Data Subjects. This does not include combining Customer Personal Data in the context of the business purpose of providing the Services.

3.3 To the extent required by Data Protection Laws, Service Provider certifies that it understands the foregoing restrictions and will comply with them.

3.4 Service Provider may provide access to or transfer any Customer Personal Data to any third party with the consent of Customer. 

3.5 Service Provider must ensure that it has a written agreement in place with all Sub-processors which contains obligations on the Sub-processor which are no less protective of Customer Personal Data than the obligations on the Service Provider under this CCPA Addendum.