Data Processing Addendum

Updated: May 2023

The Data Processing Addendum (“Addendum”) is entered into as of the ___ day of _________, 2023 (“Effective Date”), by and between Hands-on Learning Solutions, LLC, d/b/a Skillable (“Service Provider”) and __________________(“Customer”). Both Service Provider and Customer are referenced herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Customer and Service Provider are parties to the [INSERT NAME OF AGREEMENT], dated _______________ (the “Principal Agreement”);

WHEREAS, in the course of performing the services under the Agreement, Service Provider processes Personal Data (as defined herein) that is collected, licensed, owned (whether in whole or in part) and controlled by Customer; and

WHEREAS, the Parties may have certain obligations by contract, policy, or under an applicable privacy law as it concerns Personal Data.

NOW, THEREFORE, 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 Principal Agreement.

1. Definitions. 

The following list of terms and definitions are applicable to this Addendum.

a. “Applicable Laws” means (a) laws of the European Union or a Member State that pertain to Customer’s Personal Data and/or Customer; and (b) Data Protection Laws that are applicable to Customer or Customer’s Personal Data.

b. “Authorized Persons” means any person who processes Personal Data on Service Provider’s behalf, including Service Provider’s employees, officers, partners, principles, contractors and Subprocessors.

c. “CCPA” means the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act set forth in Cal. Civ. Code 1798.100, et. seq., and their implementing regulations.

d. “Data Protection Laws” means the EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country, including the United States.

e. “EEA” means the European Economic Area.

f. “EU Data Protection Laws” means the EU General Data Protection Regulation 2016/679 of the European Parliament and Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and all applicable member state implementations thereof.

g. “GDPR” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of Council.

h. “Model Clauses” means the standard contractual clauses, approved by the European Commission and included herein as Exhibit B.

i. “Services” means the services and other activities to be supplied to or carried out by or on behalf of Service Provider for Customer in accordance with the Principal Agreement.

j. The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “processing”, “Processor”, and “Supervisory Authority” shall have the same meaning as set forth in the GDPR.

k. Capitalized terms not otherwise defined in this Addendum shall have the meaning given to them in the Principal Agreement.

2.Company’s Processing of Customer’s Personal Data

a. The Parties hereby acknowledge and agree that Customer is acting as a controller and Service Provider as a processor as those terms are defined under the GDPR.

b. Service Provider shall:

i. comply with all applicable Data Protection Laws in Processing of Customer’s Personal Data; and

ii. not engage in any Processing of Customer’s Personal Data other than in accordance with Customer’s documented instructions as set forth in Exhibit A to this Addendum, unless Processing is required by Applicable Laws to which Service Provider, as a Processor, is subject.

c. Customer:

i. shall instruct Service Provider and by virtue of such instruction, thereby authorizes Service Provider and each Subprocessor to: (1) process Customer’s Personal Data; and (2) if applicable, transfer Customer Personal Data to any country or territory in compliance with applicable Data Protection Laws; in each of (1) and (2), as reasonably necessary for the provision of the Services and consistent with the Principal Agreement;

ii. warrants and represents to Service Provider that it is and will, at all relevant times, remain duly and effectively authorized to give the instructions set forth in Section 2(c)(i) of this Addendum.

d. Exhibit A to this Addendum sets out certain information regarding the Processors’ Processing of Customer Personal Data in accordance with Article 28(3) of the GDPR and, as applicable, equivalent requirements of Data Protection Laws.

e. Customer may make reasonable amendments to Exhibit A as Customer reasonably considers necessary to meet the requirements of the applicable Data Protection Laws, by providing written notice to Service Provider.

f. Customer warrants that its execution of this Addendum has been authorized by proper corporate or company action and that it has caused a properly authorized officer or representative to execute and deliver this Addendum on its behalf.

3. Service Provider Personnel

a. Service Provider shall:

i. take reasonable steps to ensure the reliability of any Authorized Persons who may have access to the Customer’s Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know and have access to the relevant Personal Data of Customer, as required for carrying out Service Provider’s obligations under the Principal Agreement, and to comply with Applicable Laws as it pertains to that individual’s duties to the Service Provider or Subprocessor; and

ii. ensure that any Authorized Persons that processes Personal Data have executed an agreement committing such Authorized Persons to a duty of confidentiality.

4. Subprocessing

a. Customer authorizes Service Provider to appoint Subprocessors as set forth in this Section 4 and in accordance with the Principal Agreement.

b. Service Provider may continue to use those Subprocessors that are already engaged by Service Provider as of the Effective Date of this Addendum, provided however, that Service Provider ensures that each Subprocessor meets the obligations set forth in Section 4(d). A list of Service Providers is available at https://www.skillable.com/subprocessors.

c. Service Provider shall give Customer advance written notice of not less than 30 calendar days of Service Provider’s intent to engage a new Subprocessor, including full details of the Processing that is to be undertaken by the Subprocessor. If Customer provides notice to Service Provider of any objections to a proposed Subprocessor, in writing, within fourteen (14) days’ of receiving Service Provider’s proposed appointment of the Subprocessor, then:

i. Service Provider shall not engage the Subprocessor to process the Personal Data; or

ii. Service Provider may elect to immediately suspend or terminate the processing of Personal Data under the Principal Agreement and/or immediately suspect or terminate the Principal Agreements, in each case without penalty.

d. As it pertains to each Subprocessor, Service Provider shall:

i. conduct adequate due diligence on the Subprocessor, prior to such Subprocessor engaging in any processing activity with any Customer Personal Data, to ensure that the Subprocessor has the capability to provide an adequate level of protection for Customer’s Personal Data in accordance with the Principal Agreement;

ii. ensure the Service Provider has a contractual arrangement with the Subprocessor, which imposes the same data protection terms and conditions on such Subprocessor, as are set forth in this Addendum and in accordance with the requirements of Article 28(3) of the GDPR;

iii. remain fully liable for any breach of this Addendum or the Principal Agreement that is caused by an act, error or omission of Service Provider’s Subprocessor.

iv. to the extent a contractual arrangement concerns the transfer of Personal Data that necessitates the use of the Model Clauses set forth in Exhibit B, Service Provider shall ensure that it enters into an agreement incorporating the Model Clauses with the Customer; and

v. upon a request from Customer, Service Provider shall make copies of its agreements with Subprocessors available to Customer to review, which may be redacted by Service Provider, to remove commercial information that is not relevant to the purpose of this Addendum.

5. Cooperation

a. Service Provider shall reasonably cooperate with Customer to enable Customer (or its third party Controller) to respond to any requests, complaints or other communications from a Data Subject, and governmental, regulatory or judicial bodies relating to the processing of Personal Data under the Principal Agreement, including requests from data subjects seeking to exercise their rights under Applicable Laws. If any such request, complaint or communication is received by or otherwise made to Service Provider, Service Provider shall, to the extent not prohibited by applicable law, immediately notify Customer and will not respond to such communication without Customer’s express authorization.

b. Except as otherwise prohibited by applicable law, if Service Provider receives a subpoena, court order, warrant or other legal demand from a third party, including, but not limited to law enforcement or other governmental, regulatory or judicial authorities, seeking the disclosure of Personal Data, Service Provider shall not disclose any information without first immediately notifying Customer, in writing, of such request in order to allow Customer to limit, challenge or protect against such disclosure, provided, however, that Service Provider’s cooperation pursuant to this Subsection (b) of Section 5, shall be at Customer’s sole expense.

c. Service Provider and each Subprocessor shall provide reasonable assistance to Customer with any data protection impact assessments, and consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of Customer by Articles 35 or 36 of the GDPR or similar provisions of a Data Protection Laws, in relation to the Processing of Customer’s Personal Data and taking into account the nature of the Processing and information available to Processors and Subprocessors.

6. Personal Data Breach

a. In the event of a Personal Data Breach affecting Customer’s Personal Data, Service Provider shall:

i. immediately notify Customer of the Personal Data Breach without undue delay and in no event later than 48 hours after Service Provider or any Subprocessor first becomes aware of the occurrence of such Personal Data Breach; and

ii. provide Customer with sufficient information in order to allow Customer to meet any obligations it may have to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

b. Service Provider shall take such measures and actions as appropriate to remedy or mitigate the effects of the Personal Data Breach and shall cooperate with Customer by providing regular updates and other reasonably requested information about developments in connection with the Personal Data Breach response, investigation and remediation activities.

c. Any press release, notification, public or regulatory announcement or communication concerning a Personal Data Breach shall be made solely at Customer’s discretion, except as otherwise required by Applicable Laws.

7. Security

a. As it concerns the Processing of Personal Data pursuant to the Principal Agreement and this Addendum, Service Provider shall take into account the state of the art, costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons (“Assessment of the Risks”).

b. Service Provider and each relevant Subprocessor, in relation to processing the Customer Personal Data under the Principal Agreement or this Addendum, shall implement the appropriate technical and organisational measures to ensure a level of security appropriate to the Assessment of Risks, including, as appropriate, the measures referenced in Articles 32(1) of the GDPR.

c. As part of the Assessment of Risks in Section 7(a) of this Addendum, Service Provider shall take into account the specific risks presented by such Processing of a Personal Data Breach.

8. Audit Reports and Inspection

a. Upon request by Customer, Service Provider shall provide copies of all information necessary to demonstrate Service Provider’s compliance with this Addendum.

b. Service Provider shall allow for and provide its reasonable cooperation with an audit under this Addendum, including inspections by any Customer or an auditor that is mutually agreed upon by the Parties, in relation to the Processing of Customer’s Personal Data by the Service Provider or a Subprocessor.

c. Customer shall give Service Provider reasonable notice of any audit or inspection to be conducted pursuant to Article 28 of the GDPR and shall make reasonable efforts to avoid causing disruption to the Service Providers’ or Subprocessors’ premises, equipment, personnel and business while Customer or auditor personnel are on the premises conducing an audit or inspection.

d. Any of Customer’s or the auditor’s personnel will not be granted access to Service Provider’s or a Subprocessor’s premises unless such personnel provides reasonable evidence of their identity, which shall be provided to Service Provider or the relevant Subprocessor prior to the commencement of the audit or inspection.

e. No audit or inspection may take place outside of normal business hours for the premises where the audit or inspection will be conducted unless in the case of an emergency, which shall be approved in advance and in writing by both Customer and Service Provider or the applicable Subprocessor.

f. No more than one audit or inspection shall be permissible in any calendar year, with respect to the Service Provider or a Subprocessor, except where:

i. Customer reasonably articulates, in writing, the necessity of an audit or inspection on the basis of having a genuine concern as to Service Provider’s or the relevant Subprocessor’s compliance with this Addendum; or

ii. Customer is required or requested to carry out an audit or inspection by Data Protection Laws, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, or

iii. Where Customer has completed an audit or inspection of Service Provider and identified concerns or requirements that need addressed in its notice to Service Provider or a relevant Subprocessor and wishes to follow-up to ensure such concern or requirement has been adequately addressed where Service Provider or the applicable Subprocessor does not otherwise demonstrate its compliance or correction.

iv. Nothing in this Addendum shall be construed to preclude a Processor from immediately informing Customer of any instruction that the Processor, in its opinion, infringes the GDPR or Applicable Laws.

9. Deletion & Return of Customer Personal Data

a. Upon Customer’s request, or upon termination or expiration of this Addendum or the Principal Agreement, regardless of reason, Service Provider shall promptly destroy or return to Customer all Personal Data in its possession or control, including any Personal Data processed by its Subprocessors.

b. The requirement in Section 9(a) of this Addendum shall not apply to the extent that Service Provider is required by Applicable Laws to retain some or all of the Personal Data, in which case, Service Provider shall isolate and protect the Personal Data from further processing.

10. Transfers of Customer Personal Data

a. Service Provider shall at all times provide a level of protection for Personal Data that is adequate, wherever processed, in accordance with the requirements of Applicable Laws.

b. Service Provider shall not process or transfer any Personal Data to any geographic territory except the territory in which the Personal Data was first collected and Service Provider shall not permit the Personal Data to be processed or transferred unless:

i. Service Provider has obtained Customer prior written consent; and

ii. Service Provider takes all such measures as are necessary to ensure such processing or transfer is in compliance with the Applicable Laws.

c. Under circumstances where Service Provider processes Personal Data under this Addendum that originates from the EEA, any such consent shall be conditional on Service Provider entering into and complying with the Model Clauses set forth in Exhibit B to this Agreement.

d. Service Provider shall also be required to ensure that any Subprocessor it engages agrees to comply with the Model Clauses set forth in Exhibit B to the extent any transfer of Personal Data will occur.

e. For the purposes of the Model Clauses and only as it concerns Service Provider and Customer, Service Provider agrees that it is a “data importer” and Customer is the “data exporter” under the Model Clauses.

11. CCPA

a. To the extent the CCPA applies to the Services provided under the Principal Agreement, Service Provider and Customer acknowledge and agree that Customer is a Business (defined below) and Skillable is a Service Provider (defined below).

b. Service Provider acknowledges and agrees that Service Provider shall not:

i. sell or share any Personal Information provided by Customer hereunder, as those terms are defined under the CCPA;

ii. retain, use, or disclose any personal information for any purpose other than the Business Purposes specified in the Principal Agreement for the business, including retaining, using, or disclosing the Personal Information for a Commercial Purpose other than the Business purposes specified in the Principal Agreement with Customer, or as otherwise permitted by the CCPA;

iii. combine the Personal Information that Service Provider receives from, or on behalf of, the Business with Personal Information that it receives from, or on behalf of, another Person or Persons, or collects from its own interaction with the Consumer, provided that Service Provider may combine Personal Information to perform any Business Purpose permitted under the CCPA and not otherwise prohibited by the terms of this DPA or the Principal Agreement.

iv. Customer shall have the right to monitor the Service Provider’s compliance with this DPA, including, but not limited to, ongoing manual reviews and automated scans and regular assessments, audits, or other technical and operational testing at least once every 12 months.

v. If a Service Provider engages any other Person to assist it in Processing Personal Information for a Business Purpose on behalf of the Business, or if any other Person engaged by Service Provider engages another Person to assist in Processing Personal Information for that Business Purpose, it shall notify Customer of that engagement, and the engagement shall be pursuant to a written contract binding on the other Person to observe all the requirements set forth in this Section 11.

vi. For purposes of this DPA, the terms “Business,” “Business Purpose,” “Commercial Purpose,” “Consumer,” “Person,” “Personal Information,” “Sell,” “Service Provider,” and “Share” shall have the meanings set forth in Cal. Civ. Code 1798.140.

12. General Terms

a. Except for the changes set forth in this Addendum, the Principal Agreement shall remain unchanged and in full force and effect.

b. In the event of any conflict between the provision of this Addendum and any provision in the Principal Agreement, this Addendum shall control and take precedence. If there is a conflict or inconsistency between this Addendum and the Model Clauses, the Model Clauses shall prevail and take precedence.

c. The obligations imposed upon Service Provider under this Addendum shall survive the expiration or termination of this Addendum so long as Service Provider or a Subprocessor processes Personal Data on behalf of Customer.

d. Without causing prejudice to the provisions in the Model Clauses (Clauses 7 and 9):

i. As it concerns any disputes or claims arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity, the Parties to the Addendum hereby agree and consent to the jurisdiction set forth in the Principal Agreement; and

ii. In the event there are changes made to the Data Protection Laws as defined in this Addendum:

1. 1. Service Provider and each Subprocessor shall promptly cooperate to ensure that equivalent amendments are made to any agreement put in place in Section 4 of this Addendum; and
   2. propose any other amendments or changes to this Addendum, which Customer reasonably consider to be necessary to address the requirements of any Data Protection Law.

ii. In the event that Customer provides notice to Service Provider in accordance with Section 12(e)(i)(1) of this Addendum:

1. 1. Service Provider and each Subprocessor shall promptly cooperate to ensure that equivalent amendments are made to any agreement put in place in Section 4 of this Addendum; and
   2. Customer shall not unreasonably withhold or delay agreement to any consequential amendments of this Addendum proposed by Service Provider to protect the Subprocessors against additional risks associated with the amendments made under Sections 12(e)(i)(1) and/or 12(e)(ii)(1) of this Addendum.

iii. If Customer should provide notice under Section 12(e)(i)(2), the Parties shall promptly discuss the proposed amendments and negotiate, in good faith, those or alternative amendments designed to address the requirements identified in Customer’s notice as soon as is reasonably practicable.

iv. Neither Customer nor Service Provider shall require the consent or approval of any or Subprocessor to amend this Addendum pursuant to Section 12(e)(ii) or otherwise.

v. The Parties acknowledge and agree that a breach by Service Provider of this Addendum shall constitute a material breach of the Principal Agreement, in which case and without prejudice to any other right or remedy available to it, Customer may elect to immediately terminate the Principal Agreement in accordance with the termination provision set forth in that Principal Agreement.

vii. In the event any provision of this Addendum is declared to be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in full force and effect. The invalid or unenforceable provision shall be amended as necessary to ensure its validity and enforcement, which preserving the Parties’ intentions or, if this is not possible, construed in a manner as if the invalid or unenforceable part had never been contained therein.

vii. This Addendum may not be modified except by a subsequent written instrument signed by both Parties.

viii. This Addendum may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute an original. The Parties are permitted to sign and deliver this Addendum by facsimile or email transmission or through technology infrastructure that permits and accepts digital signatures.

IN WITNESS WHEREOF, this Addendum is entered into and becomes a valid and legally binding part of the Principal Agreement, effective as of the first date set forth above.

[NAME OF CUSTOMER]

By:_________________________________

Its:_________________________________

Date Signed:_________________________

Hands-On Learning Solutions, LLC d/b/a Skillable

By:__________________________________

Its:__________________________________

Date Signed:__________________________

EXHIBIT A: DETAILS OF PROCESSING SERVICES CONCERNING CUSTOMER’s PERSONAL DATA THAT ARE UNDERTAKEN BY Service provider ON CUSTOMER’S BEHALF

In accordance with Article 28(3) of the GDPR, this Exhibit A contains certain details regarding the Processing of Customer’s Personal Data.

Subject Matter and Duration of the Processing Services Concerning Customer’s Personal Data

The subject matter and duration of the Processing Services that Service Provider will undertake on Customer’s behalf are detailed in the Principal Agreement and this Addendum.

The Nature and Purposes of the Processing Services

Service Provider will host and store Personal Data that is collected and inputted by Customer into Service Provider’s learning services system, which Service Provider will use only in accordance with the Principal Agreement and this Addendum.

Types of Customer’s Personal Data

Contact information, including first and last name, email address, internet protocol address, and user ID.

Types of Special Categories of Personal Data

Not applicable.

Categories of Data Subject to whom the Customer’s Personal Data relates

Customer’s employees, end-users, and contractors.

Obligations and Rights of Customer and

The obligations and rights of Customer are set forth in the Principal Agreement and this Addendum.

EXHIBIT B: MODEL CLAUSES

STANDARD CONTRACTUAL 

SECTION 1

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) 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 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

iii. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

iv. Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);

v. Clause 13;

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

vii. Clause 16(e);

viii. Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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 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 — OMITTED

SECTION II — OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

MODULE TWO: Transfer Controller to Processor

8.1 Instructions

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

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

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

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

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

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

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

8.7 Sensitive data

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

8.8 Onward transfers

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

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

MODULE TWO: Transfer controller to processor

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 thirty days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

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

c) The data importer shall provide, at the data exporter’s request, a copy of such a 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

MODULE TWO: Transfer controller to processor

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

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

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

Clause 11

Redress

MODULE TWO: Transfer controller to processor 

(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

MODULE TWO: Transfer controller to processor

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

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

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

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

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

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

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

Clause 13

Supervision

MODULE TWO: Transfer controller to processor

a) [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

MODULE TWO: Transfer controller to processor

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

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

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;

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 [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

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

MODULE TWO: Transfer controller to processor

15.1 Notification

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

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 minimization

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. [For Module Three: 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 [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.

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

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

Clause 17

Governing law

MODULE TWO: Transfer controller to processor

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of _______________.

Clause 18

Choice of forum and jurisdiction

MODULE TWO: Transfer controller to processor

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

b) The Parties agree that those shall be the courts of ____________.

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