Superside Data Processing Agreement

Last Updated: 23 December 2022

This Data Processing Agreement (the “DPA”) constitutes an integral part of all agreements between Konsus, Inc., a Delaware corporation (the “Processor” or “Superside”) and the Client (the “Controller”), including the Superside Terms of Use or under any Master Service Agreement or similar agreement (the “Agreement”), and reflects the parties’ agreement with respect to the processing of Personal Data. This DPA supplements the Agreement and in the event of any conflict between the terms of this DPA and the terms of the Agreement, the terms of this DPA prevail with regard to the specific subject matter of this DPA. This DPA amends, supersedes and replaces any prior agreement relating to data processing and/or data protection the parties entered into prior to entering into this DPA.

1. DEFINITIONS
   Capitalized terms used in this DPA shall have the meanings given to them in the Agreement and below:
   1. “Applicable Data Protection Law” means (a) all data protection laws and regulations applicable to the European Economic Area and Switzerland, including the General Data Protection Regulation 2016/679 (“GDPR”), and EU Member State laws supplementing the GDPR; (b) the UK Data Protection Act of 2018, and the UK GDPR (collectively “UK Data Protection Laws”); and (c) the CPRA.
   2. “Controller Data” means any Personal Data that Processor processes on behalf of Controller in providing the Services including all electronic data, text, messages or other materials submitted to the Service by Users and End-Users in connection with Your use of the Service.
   3. “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., and its implementing regulations.
   4. “CPRA” means the California Privacy Rights Act of 2020, and its implementing regulations which amends the California Consumer Privacy Act of 2018 (CCPA).
   5. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Controller Data transmitted, stored or otherwise processed by Processor.
   6. “Data Subject”: means the identified or identifiable person to whom Personal Data relates.
   7. “EEA Personal Data” means Personal Data collected from Data Subjects when they were located in the European Economic Area (EEA).
   8. “Permitted Purpose” means the use of the Controller Data to the extent necessary for provision of the Services by Processor to the Controller.
   9. “Personal Data” means any information relating to an identified or identifiable natural person that relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person.
   10. “Regulator” means any supervisory authority with authority under Applicable Data Protection Law over all or any part of the provision or receipt of the Services or the processing of Personal Data.
   11. “Service” means the products and services that are ordered by Controller through a link or via a Statement of Work (“SOW”) and made available online by Processor.
   12. “Sub-Processor” means any third-party data processor engaged by Processor, who receives Personal Data from Processor for processing on behalf of Data Controller and in accordance with Data Controller’s instructions (as communicated by Processor) and the terms of its written subcontract.
   13. “Swiss Personal Data” means Personal Data collected from Data Subjects while they are located in Switzerland.
   14. Terms such as “processing”, “controller”, “processor”, “service provider”, and “supervisory authority” shall have the meaning ascribed to them in the Applicable Data Protection Law.
   15. “UK Personal Data” means Personal Data collected from Data Subjects when they are located in the United Kingdom.
       
2. PURPOSE
   1. Controller and Processor have entered into the Agreement pursuant to which Controller is granted a license to access and use the Service. In providing the Service, Processor will engage, on behalf of Controller, in the processing of Personal Data submitted to and stored within the Service by Controller.
   2. The parties are entering into this DPA to ensure that the processing by Processor of Controller Data, within the Service by Controller and/or on its behalf, is done in a manner compliant with Applicable Data Protection Law and its requirements regarding the collection, use and retention of Personal Data of Data Subjects.
      
3. OWNERSHIP OF THE CONTROLLER DATA
   1. As between the parties, all Personal Data Processed under the terms of this DPA (“Controller Data”) and the Agreement shall remain the property of Data Controller. Under no circumstances will Data Processor act, or be deemed to act, as a “controller” (or equivalent concept) of the Controller Data Processed within the Service under any Applicable Data Protection Law.
      
4. OBLIGATIONS OF DATA PROCESSOR
   1. The parties agree that the subject-matter and duration of Processing performed by Data Processor under this DPA, including the nature and purpose of Processing, the type of Personal Data, and categories of Data Subjects, shall be as described in Schedule 1 of this DPA and in the Agreement.
   2. As part of Data Processor providing the Service to Data Controller under the Agreement, Data Processor agrees and declares as follows:
      1. to process Personal Data in accordance with Data Controller’s documented instructions as set out in the Agreement and this DPA or as otherwise necessary to provide the Service, except where required otherwise by applicable laws (and provided such laws do not conflict with Applicable Data Protection Law); in such case, Data Processor shall inform Data Controller of that legal requirement upon becoming aware of the same (except where prohibited by applicable laws);
      2. to ensure that all staff and management of any member of the Processor are fully aware of their responsibilities to protect Personal Data in accordance with this DPA and have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
      3. to implement and maintain appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access (a “Data Security Breach”), provided that such measures shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, so as to ensure a level of security appropriate to the risks represented by the Processing and the nature of the Data to be protected;
      4. to notify Data Controller, without undue delay (and in any event within 24 hours), in the event of a confirmed Data Security Breach affecting Data Controller’s Service Data and to cooperate with Data Controller as necessary to mitigate or remediate the Data Security Breach;
      5. to comply with the requirements of Section 12 (Use of Sub-processors) when engaging a Sub-processor;
      6. taking into account the nature of the Processing, to assist Data Controller (including by appropriate technical and organizational measures), insofar as it is commercially reasonable, to fulfill Data Controller’s obligation to respond to requests from Data Subjects to exercise their rights under Applicable Data Protection Law (a “Data Subject Request”). In the event Data Processor receives a Data Subject Request directly from a Data Subject, it shall (unless prohibited by law) direct the Data Subject to the Data Controller in the first instance. However, in the event Data Controller is unable to address the Data Subject Request, taking into account the nature of the Processing and the information available to Data Processor, Data Processor, shall, on Data Controller’s request and at Data Controller’s reasonable expense, address the Data Subject Request, as required under the Applicable Data Protection Law;
      7. upon request, to provide Data Controller with commercially reasonable information and assistance, taking into account the nature of the Processing and the information available to Data Processor, to help Data Controller to conduct any data protection impact assessment or Supervisor consultation it is required to conduct under Applicable Data Protection Law;
      8. upon termination of Data Controller’s access to and use of the Service, to comply with the requirements of Section 6 (Return and Destruction of Personal Data);
      9. to comply with the requirements of Section 11 (Audits) in order to make available to Data Controller information that demonstrates Data Processor’s compliance with this DPA; and
      10. Data Processor shall immediately inform Data Controller if, in its opinion, Data Controller’s Processing instructions infringe any law or regulation. In such event, Data Processor is entitled to refuse Processing of Personal Data that it believes to be in violation of any law or regulation.
          
5. OBLIGATIONS OF DATA CONTROLLER
   1. As part of Data Controller receiving the Service under the Agreement, Data Controller agrees and declares as follows:
      1. it is solely responsible for the accuracy, quality, and legality of Personal Data and the means by which such Personal Data is acquired and the Processing of Personal Data by Data Controller in connection with the Agreement, including instructing Processing by Data Processor in accordance with this DPA, is and shall continue to be in accordance with all the relevant provisions of the Applicable Data Protection Law, particularly with respect to the collection, security, protection, and disclosure of Personal Data;
      2. that if Processing by Data Processor involves any “special” or “sensitive” categories” of Personal Data (as defined under Applicable Data Protection Law), Data Controller has collected such Personal Data in accordance with Applicable Data Protection Law; and
      3. that Data Controller will inform its Data Subjects to the extent required under Applicable Data Protection Law:
         1. about its use of data processors to Process their Personal Data, including Data Processor, to the extent required under Applicable Data Protection Law; and
         2. that their Personal Data may be Processed outside of the European Economic Area.
      4. that it shall respond in reasonable time and to the extent reasonably practicable to enquiries by Data Subjects regarding the Processing of their Personal Data by Data Controller, and to give appropriate instructions to Data Processor in a timely manner; and
      5. that it shall respond in a reasonable time to enquiries from a Supervisory Authority regarding the Processing of relevant Personal Data by Data Controller.
         
6. RETURN AND DESTRUCTION OF PERSONAL DATA
   1. Upon the termination of Data Controller’s access to and use of the Service, Data Processor will, for no less than thirty (30) days following such termination, permit Data Controller to export its Controller Data, at its expense, in accordance with the capabilities of the Service. Following such period, Data Processor shall promptly delete all Controller Data stored or Processed by Data Processor on behalf of Data Controller in accordance with Data Processor’s deletion policies and procedures. Data Controller expressly consents to such deletion.
      
7. CONTROLLER’S INSTRUCTIONS
   1. Controller represents and warrants that it:
      1. has complied, and will continue to comply, with all applicable laws, including Applicable Data Protection Law, in respect of any processing instructions it issues to Processor; and
      2. has provided, and will continue to provide, all necessary notice and has obtained, and will continue to obtain, all consents and rights necessary under Applicable Data Protection Law for Processor to process Controller Data for the purposes described in the Agreement.
         
8. INTEGRATIONS
   The Service may provide links to integrations with third party products in which the proprietary rights are held by a third party, including, without limitation, certain third party products which may be integrated directly into Controller’s account or instance in the Service (each a “Third Party Product”). If Controller elects to enable, access or use such Third Party Products, its access and use of such Third Party Products is governed solely by the terms and conditions and privacy policies of such Third Party Products, and Processor does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Products, including, without limitation, their content or the manner in which they handle Controller Data or any interaction between Controller and the provider of such Third Party Products. Processor is not liable for any damage or loss caused or alleged to be caused by or in connection with Controller’s enablement, access or use of any such Third Party Products, or Controller’s reliance on the privacy practices, data security processes or other policies of such Third Party Products. The providers of Third Party Products shall not be deemed Sub-processors for any purpose under this DPA.
   
9. EEA, UK & SWISS PERSONAL DATA TRANSFERS EEA
   1. EU Standard Contractual Clauses (EU SCC). The parties agree, as evidenced by their signature on this DPA or any Agreement which incorporates this DPA by reference, that the EU SCC, attached to this DPA as Schedule 1, will apply to EEA Personal Data transferred from Controller, either directly from the EEA or via onward transfer, to Processor. In the event that any provision of the EU SCC is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of the SCC and the terms of this DPA shall remain operative and binding on the parties. The parties agree on the following clarifications in relation to the EU SCC:
      1. Pursuant to Clause 9(a) of the EU SCC, Controller acknowledges and expressly agrees that Processor will appoint and engage new Sub-Processors in accordance with Section 12of this DPA.
      2. The audits described in Clause 8.9(c) and (d) of the EU SCC shall be carried out in accordance with Section 11 of this DPA.
      3. The certification of deletion of Controller Data that is described in Clause 16(d) of the EU SCC shall be provided by Processor only upon Controller’s request.
      4. The liability described in Clause 13 shall in no event exceed the limitations set forth in the Agreement, and that under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this DPA, or their affiliates, officers, directors, employees, agents, service providers, suppliers, or licensors be liable to the other party or any third party for any lost profits, lost sales of business, lost data (being data lost in the course of transmission via Controller’s systems or over the Internet through no fault of Processor), business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, regardless of whether such party has been advised of the possibility of or could have foreseen such damages. For the avoidance of doubt, this section shall not be construed as limiting the liability of either party with respect to claims brought by data subjects.
   2. Swiss Personal Data. The parties agree that the EU SCC attached at Schedule 1 will apply to Swiss Personal Data transferred from Controller, either directly from Switzerland or via onward transfer, to Processor to the extent Processor is located in the United States or any country not recognized by Switzerland as providing an adequate level of protection for Personal Data. The Parties agree that the following clarifications apply to Schedule 1 as to the processing of Swiss Personal Data:
      1. for purposes of Annex I.C under EU SCC Clause 13, insofar as the data transfer is governed by the Switzerland Federal Act on Data Protection of 19 June 1992 (SR 235.1; FADP) or the FADP’s revised 25 September 2020 version, the Supervisory Authority shall be Switzerland’s Federal Data Protection and Information Commissioner (FDPIC);
      2. for transfers of Swiss Personal Data the applicable law for contractual claims pursuant to EU SCC Clause 17 and the applicable place of jurisdiction pursuant to EU SCC Clause 18(b) shall be Ireland and the applicable place of jurisdiction shall be Ireland; and
      3. the term “member state” must not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in Switzerland in accordance with EU SCC Clause 18(c). The EU SCC shall also protect the data of Switzerland legal entities until the entry into force of the 25 September 2020 revised version of the Federal Act on Data Protection (revised FADP).
   3. UK Standard Contractual Clauses (UK SCC). The parties agree, as evidenced by their signature on this DPA or any Agreement which incorporates this DPA by reference, that the UK SCC, attached to this DPA as Schedule 2, will apply to UK Personal Data transferred from Controller, either directly from the UK or via onward transfer, to Processor. In the event that any provision of the UK SCC is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of the SCC and the terms of this DPA shall remain operative and binding on the parties. The parties agree on the following clarifications in relation to the SCCs:
      1. Pursuant to Clause 11 of the UK SCC, Controller acknowledges and expressly agrees that Processor will appoint and engage new Sub-Processors in accordance with Section 12of this DPA.
      2. The audits described in Clauses 5(f) and 12(2) of the UK SCC shall be carried out in accordance with Section 11 of this DPA.
      3. The certification of deletion of Controller Data that is described in Clause 12(1) of the UK SCC shall be provided by Processor only upon Controller’s request.
      4. The liability described in Clause 6 of the UK SCC shall in no event exceed the limitations set forth in the Agreement, and that under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this DPA, or their affiliates, officers, directors, employees, agents, service providers, suppliers, or licensors be liable to the other party or any third party for any lost profits, lost sales of business, lost data (being data lost in the course of transmission via Controller’s systems or over the Internet through no fault of Processor), business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, regardless of whether such party has been advised of the possibility of or could have foreseen such damages. For the avoidance of doubt, this section shall not be construed as limiting the liability of either party with respect to claims brought by Data Subjects.
      5. If after the effective date of this DPA, the United Kingdom issues a UK Addendum to the EU SCC for Controller to Processor contracts, the Parties agree, as evidenced by their signatures on this DPA, or any Agreement which incorporates this DPA by reference that the new UK Addendum will automatically apply to any UK Personal Data, and replace Schedule 2, and the clarifications noted above in the EU Standard Contractual Clauses section in this Section 4 will apply to UK Personal Data as well. Such action will not invalidate or render this DPA unenforceable.
         
10. CPRA – CALIFORNIA RESIDENTS’ PERSONAL DATA
    1. The parties agree that the following provisions apply to the processing of California residents’ Personal Data under the CPRA.
       1. Roles of the Parties. Processor will act as a “service provider” in its performance of its obligations under the Agreement. Processor (i) will only use Controller Data to provide the Services under the Agreement; (ii) will not collect, retain, use, sell, disclose, share or otherwise process any “Personal Data” included in the Controller Data, for any purpose other than providing the Services under the Agreement, or as otherwise permitted by the CPRA. Processor understands the restrictions in this DPA and hereby certifies that it understands its obligation under the CPRA and will comply with them. Processor will also provide the same level of privacy protection required by the CPRA. The Controller will have the rights to take reasonable and appropriate steps to ensure that Processor uses the Personal Data transferred in a manner consistent with the Controller's obligations under the Agreement and this DPA. Processor will notify the Controller in the event it can no longer meet its obligations under the Agreement and this DPA. Upon such notice, the Controller will have the right to take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Data. If the Processor engages a sub-processor or a sub-processor engages a sub-processor, the Processor is required to notify the Controller and enter into a contract with the sub-processor containing the above requirements.
       2. Purpose Limitation. Processor shall process Controller Data only in accordance with Controller’s documented lawful instructions as set forth in the Agreement and this DPA, for Permitted Purposes, as necessary to comply with applicable law, or as otherwise agreed in writing. The Processor will not combine the Personal Data it receives from the Controller with Personal Data it receives from or on behalf of another person or persons or that it collects from its own interaction with the customer. However, the Processor will be able to combine the Personal Data to perform certain business purposes that will be identified in regulations adopted by the California Privacy Protection Agency.
       3. Data Subject and Regulator Requests. Processor shall, to the extent legally permitted, promptly notify Controller in writing of any complaints, questions or requests received from Data Subjects or Regulators regarding the Controller Data. Controller shall be responsible for communications and leading any efforts to comply with all requests made by Data Subjects under the applicable Data Protection Laws and all communications from Regulators that relate to the Controller Data, in accordance with Data Protection Laws. Processor shall cooperate with the Controller in responding to verifiable requests, including deleting Personal Data or enabling the Controller to do so, and notifying their own service providers or contractors to delete the Personal Data. Processor will provide the Controller with the Personal Data in their possession that was obtained in their capacity as a service provider for the business and correct any inaccurate Personal Data.
       4. Security. Processor will implement and maintain appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access (a “Data Security Breach”), provided that such measures shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, so as to ensure a level of security appropriate to the risks represented by the Processing and the nature of the Data to be protected. Processor’s security controls are listed in Schedule 1, SCC, Annex II. Notwithstanding the above, Controllers agrees that except as provided by this DPA, Controller is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Controller Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Controller Data uploaded to the Services.
       5. Data Breach. Processor shall, to the extent permitted by law, notify Controller of any Data Breach of which it becomes aware without undue delay (and in any event within 24 hours), after becoming aware of any Data Breach involving Controller Data processed by Processor or any of its Sub-Processors. Processor will use best efforts to investigate the Data Breach and take any actions that are reasonably necessary to mitigate damage, as required by law and as appropriate under the circumstances. Processor will reasonably assist Controller in fulfilling its obligations to notify Data Subjects and the relevant authorities in relation to a Data Breach, provided that nothing in this section shall prevent either party from complying with its obligations under the Applicable Data Protection Laws. The parties agree to coordinate in good faith on developing the content of any related public statements. The obligations in this section shall not apply to Data Breaches that are caused by Controller.
       6. Additional Rights. Additional rights applicable to the Controller can be found in Section 12 of Superside’s privacy policy https://superside.com/privacy.
          
11. AUDITS
    1. Controller has the right to audit Processor’s operations, systems and/or facilities where reasonably required by Controller to assess Processor’s compliance with this DPA.
       
12. USE OF SUB-PROCESSORS
    1. Controller agrees that Processor may appoint Sub-Processors to assist it in providing the Service and processing Controller Data provided that such Sub-Processors agree to (a) act only on Processor’s instructions when processing the Controller Data (which instructions shall be consistent with Controller’s processing instructions to Processor); (b) protect the Controller Data to a standard consistent with the requirements of this DPA; and (c) the imposition of contractual obligations on the Sub-Processor that are at least equivalent to those obligations imposed on Processor under this DPA.
    2. Processor shall maintain an up-to-date list of the names and location of all Sub-Processors used for the processing of Controller Data under this DPA at https://www.superside.com/subprocessors/. It is Controller’s responsibility to monitor this page for updates to Processor’s sub-processor list.
    3. To the extent Controller reasonably believes a new Sub-Processor processing of Controller Data may violate Applicable Data Protection Laws or weaken the security of the Controller Data, the Controller may object in writing to Processor’s new Sub-Processor by notifying Processor. Any such written objection shall include Controller’s specific reasons for its objection and proposed options to mitigate alleged risk, if any. In such event, Processor will either (a) instruct the Sub-Processor to cease any further processing of Controller Data, in which event this DPA shall continue unaffected, or (b) allow Controller to terminate this DPA. In the absence of timely and valid objection by Controller, such Sub-Processor may be commissioned to process Controller Data.
       
13. LIMITATION OF LIABILITY
    1. Notwithstanding anything to the contract in this DPA or the Agreement, Processor’s aggregate liability to Controller or any third party arising out of this DPA shall in no event exceed the limitations set forth in the Agreement.
    2. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this DPA, or their affiliates, officers, directors, employees, agents, service providers, suppliers, or licensors be liable to the other party, or any third party, for any lost profits, lost sales, lost business, lost data (being data lost in the course of transmission via Controller’s systems or over the Internet through no fault of Processor), business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.
    3. For the avoidance of doubt, this section shall not be construed as limiting the liability of either party with respect to claims brought by Data Subjects.
       
14. DURATION
    1. This DPA will remain in force as long as Data Processor Processes Personal Data on behalf of Data Controller under the Agreement.
       
15. MISCELLANEOUS
    1. This DPA may not be amended or modified except by a writing signed by both parties hereto. This DPA may be executed in counterparts. The terms and conditions of this DPA are confidential and each party agrees and represents, on behalf of itself, its employees and agents to whom it is permitted to disclose such information that it will not disclose such information to any third party; provided, however, that each party shall have the right to disclose such information to its officers, directors, employees, auditors, attorneys and third party contractors who are under an obligation to maintain the confidentiality thereof and further may disclose such information as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction or as reasonably necessary to comply with any applicable law or regulation. Neither party may, directly or indirectly, by operation of law or otherwise, assign all or any part of its rights under this DPA or delegate performance of its duties under this DPA without the other party’s prior consent, which consent will not be unreasonably withheld, provided that either party may assign this DPA to any affiliate or in connection with any merger or change of control or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this DPA. Subject to the foregoing restrictions, this DPA will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This DPA, the SCC, and the Agreement constitute the entire understanding between the parties with respect to the subject matter herein, and shall supersede any other arrangements, negotiations or discussions between the parties relating to that subject-matter.
       
16. SEVERABILITY
    1. Any provision of this DPA that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction alone, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties will attempt in good faith to agree upon a valid and enforceable provision that is a reasonable substitute and shall incorporate such substitute provision into this DPA.
       
17. GOVERNING LAW AND JURISDICTION
    1. This DPA shall be governed by the laws of the State of Delaware without regard to conflict of laws principles. The parties hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware, New Castle Country, for the purpose of resolving any dispute relating to this DPA.

SCHEDULE 1

EU STANDARD CONTRACTUAL CLAUSES

CONTROLLER TO PROCESSOR

SECTION I

Clause 1

Purpose and scope

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

(b) 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”).

(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:

1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
2. Clause 8 -: Clause 8.1(b), 8.9(a), (c), (d) and (e);
3. Clause 9 - Clause 9(a), (c), (d) and (e);
4. Clause 12 - Clause 12(a), (d) and (f);
5. Clause 13;
6. Clause 15.1(c), (d) and (e);
7. Clause 16(e);
8. Clause 18 - Clause 18(a) and (b).

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 — Optional

Docking clause

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

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

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

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

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

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

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

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

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

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

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

8.7 Sensitive data

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

8.8 Onward transfers

The data importer shall only disclose the Personal Data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union.(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 defence 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

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

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

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

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

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

Clause 9

Use of sub-processors

(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least fourteen (14) business 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

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

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

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

Clause 11

Redress

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

The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.

(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:

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.

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

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

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

Clause 12

Liability

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

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

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

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

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

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

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

Clause 13

Supervision

(a) 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.

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

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

Clause 15

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

15.1 Notification

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

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.

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

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

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

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

15.2 Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

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

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 of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

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

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

Clause 17

Governing law

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

Clause 18

Choice of forum and jurisdiction

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

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

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

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

ANNEX I

A. LIST OF PARTIES

Data exporter(s):

Name of Data Exporter: As stated out in the Agreement

Address: As stated out in the Agreement

Contact Person’s Name: As stated out in the Agreement

Position: As stated out in the Agreement

Contact details: As stated out in the Agreement

Activities relevant to the data transferred under these Clauses: Controller of Personal Data as needed to effect Superside’s provision of the Services.

Role (controller/processor): Controller

Data importer(s):

Name of Data Importer: Superside

Address: 1201 N. Market Street, Suite 111, Wilmington, DE, 19801

Contact Person’s Name: Nadine Naffa

Position: Risk and Compliance Manager

Contact details: dataprivacy@superside.com

Activities relevant to the data transferred under these Clauses: Responsible for overseeing data protection compliance in relation to data.

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred. 
Users, Controller’s employees, suppliers or subcontractors; and any other person who transmits data via the Services, including individuals collaborating and communicating with Users (as those terms are defined in the Master Service Agreement).

Categories of personal data transferred. 
Personal data submitted, stored, sent or received by the Controller or Users via the Services (as that term is defined in the Master Service Agreement), may include the following categories of data: name, date of birth, place of birth, taxpayer identification number, address, phone number, email address, and, if applicable, credit card information to provide our Services.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
Superside’s Services are not designed to process any sensitive data.

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

Nature of the processing.
Superside will process personal data submitted, stored, sent or received by the Controller of Users for the purposes of providing the Services and related technical support to Controller in accordance with the Master Service Agreement.

Purpose(s) of the data transfer and further processing.
Superside will transfer and further process such personal data for the purposes of providing the Services to the Data Exporter.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
The applicable Contract Term (as defined in the Master Service Agreement) plus the period from expiry of such Contract Term until deletion of all personal data by the Processor in accordance with such Agreement.

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

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13
The competent supervisory authority shall be that of the Member State in which the data exporter is established.

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

Superside implements and maintains the security standards set out below. Superside may update or modify such security standards from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

Superside’s security and availability architecture is built on top of ISO 27002:2013 controls and SOC 2 Focus Points to enable best practice protection controls, implemented based on industry standards.

• Measures of pseudonymisation and encryption of personal data
  • All customer personal data is stored in an encrypted database, and access to personal data is only available to relevant personnel based on the function they serve in Superside.
• Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
  • Superside undergoes an annual SOC2 audit to ensure our security processes and controls are well documented and maintained.
• Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
  • Superside has encrypted backups of all customer data stored in multiple AWS regions to allow us to rapidly restore access in the case of an incident.
• Processes for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing
  • Superside has a Security Steering Committee that does various quarterly and annual revisions to ensure that Superside’s technical and organisational measures are updated.
• Measures for user identification and authorization
  • Users are identified by their email address and authorise into Superside’s platform either through a password or Google single sign on.
• Measures for the protection of data during transmission
  • Data is encrypted during transmission
• Measures for the protection of data during storage
  • Data is encrypted during storage
• Measures for ensuring physical security of locations at which personal data are processed
  • Superside uses Amazon AWS for our infrastructure hosting and reviews Amazon AWS’ most recent SOC2 report yearly to ensure their physical security measures meet Superside’s requirements.
• Measures for ensuring events logging
  • Superside uses AWS services for service event logging and Datadog for application logging.
• Measures for ensuring system configuration, including default configuration
  • Superside has two separate environments and uses Terraform to describe our infrastructure in code. This ensures system configurations are properly tested in a separate environment before going to production and allows changes to be peer-reviewed before going live.
• Measures for internal IT and IT security governance and management, including establish and maintain network and internet security procedures, protocols, security gateways, and firewalls with respect to the Personal Data as may be appropriate
  • Superside’s infrastructure is managed by a Software Reliability Engineering department that is responsible for our infrastructure and its configuration. The configuration is managed through Terraform as Infrastructure as Code and changes are peer reviewed. Superside also works with 3rd party vendors to validate that our infrastructure is securely set up.
• Measures for certification/assurance of processes and products
  • Superside undergoes an annual SOC2 audit to validate our controls.
• Measures for ensuring data minimization
  • Superside only requests and stores personal data required to deliver our Services.
• Measures for ensuring data quality
  • Measures are in place to ensure data quality by having relevant Superside personnel on accounts verify and update data accuracy based on their experience working with an account.
• Measures for ensuring limited data retention
  • Superside has data deletion policies in place to ensure data is only stored as long as it is needed.
• Measures for ensuring accountability
  • Superside’s data protection policy ensures appropriate accountability.
• Measures for allowing data portability and ensuring erasure
  • Customers can request data portability or erasure through dataprivacy@superside.com.
• Measures for establishing and maintaining safeguards to permit access to the personal data only to those of its employees and representatives who (i) have a need to access the personal data for the purposes of providing services, and (ii) have agreed to maintain the personal data in confidence and only to use it for the purpose of providing the Services;
  • Superside’s security steering committee has a quarterly review of access control to our internal system and all personnel sign an NDA when joining Superside.
• Measures to ensure that appropriate technical and organization measures are in place to prevent unauthorized, unlawful, or accidental access to the Personal Data as may be appropriate.
  • Superside has measures in place to prevent breaches from happening. As part of our SOC2 audit process we are committed to undergoing a yearly penetration test from an external third party and our development processes, change management and infrastructure are audited to ensure they comply with industry standards.

Sub-processors

Assistance to Controller. Per Clause 9 of the SCCs to which this Annex is attached, Superside has entered into written contracts with all of its sub-processors wherein sub-processors agree to provide reasonable assistance to Superside in responding to Controller’s reasonable inquires relating to the Superside Services.

ANNEX III – LIST OF SUB-PROCESSORS

See https://www.superside.com/subprocessors

ANNEX IV – Transfer Impact Assessment (United States)

Pursuant to Clause 14(d) the parties have agreed to document their assessment of the laws and practices in the above-referenced destination country. The following memorializes the parties’ understanding of Superside’s processing activities. This memorialization may be modified, updated, or changed at any time by the parties.

CONCLUSION

Based upon a review of the laws identified above as applicable to Superside, as well as the additional factors applicable to the processing activity, the data exporter and data importer have not identified a significant reason to believe that the laws and practices applicable to the data importer, including any requirements to disclose personal data or measures authorizing access to public authorities, are likely to prevent the data importer from fulfilling its contractual duties in relation to the processing. The following summarizes the basis of this conclusion:

1. While data importer may fall within FISA’s broad definition of “electronic service provider” it has never received any such governmental requests per FISA, EO 12333 or the ECPA, that call for secrecy in connection with requests for personal data about EU data subjects.
2. In providing its Services, data importer does not process any special categories of personal data, or sensitive information disclosed by EU data subjects that may be of interest to US governmental authorities. Thus, data importer has no reason to believe that the US government has targeted the data importer, or other companies that operate in a similar sector, for requests that call for personal data about EU data subjects.
3. Data importer has various security measures in place that prevent US governmental authorities from accessing data that it stores without data importer’s knowledge.
4. Data importer maintains a comprehensive law enforcement request policy which is designed to identify privacy rights of EU data subjects, and seeks to limit the scope of any requests from the US government that call for information about Europeans.
5. The length of the processing chain is consistent with industry practice and the data importer has instituted controls to ensure that it understands the extent of onward transfers and consistent obligations and standards are imposed upon vendors.

SCHEDULE 2

UK ICO Standard Contractual Clauses – Controller to Processor

This International Data Transfer Agreement (IDTA) has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

TABLE 1: PARTIES AND SIGNATURES

TABLE 2: TRANSFER DETAILS

TABLE 3: TRANSFERRED DATA

TABLE 4: SECURITY REQUIREMENTS

Part 2: Extra Protection Clauses

Part 3: Commercial Clauses

Part 4: Mandatory Clauses

Information that helps you to understand this IDTA

1. This IDTA and Linked Agreements
   1. Each Party agrees to be bound by the terms and conditions set out in the IDTA, in exchange for the other Party also agreeing to be bound by the IDTA.
   2. This IDTA is made up of:
      1. Part one: Tables;P
      2. Part two: Extra Protection Clauses;
      3. Part three: Commercial Clauses; and
      4. Part four: Mandatory Clauses.
   3. The IDTA starts on the Start Date and ends as set out in Sections 29 or 30.
   4. If the Importer is a Processor or Sub-Processor instructed by the Exporter: the Exporter must ensure that, on or before the Start Date and during the Term, there is a Linked Agreement which is enforceable between the Parties and which complies with Article 28 UK GDPR (and which they will ensure continues to comply with Article 28 UK GDPR).
   5. References to the Linked Agreement or to the Commercial Clauses are to that Linked Agreement or to those Commercial Clauses only in so far as they are consistent with the Mandatory Clauses.
      
2. Legal Meaning of Words
   1. If a word starts with a capital letter it has the specific meaning set out in the Legal Glossary in Section 36.
   2. To make it easier to read and understand, this IDTA contains headings and guidance notes. Those are not part of the binding contract which forms the IDTA.
      
3. You have provided all the information required
   1. The Parties must ensure that the information contained in Part one: Tables is correct and complete at the Start Date and during the Term.
   2. In Table 2: Transfer Details, if the selection that the Parties are Controllers, Processors or Sub-Processors is wrong (either as a matter of fact or as a result of applying the UK Data Protection Laws) then:
      1. the terms and conditions of the Approved IDTA which apply to the correct option which was not selected will apply; and
      2. the Parties and any Relevant Data Subjects are entitled to enforce the terms and conditions of the Approved IDTA which apply to that correct option.
   3. In Table 2: Transfer Details, if the selection that the UK GDPR applies is wrong (either as a matter of fact or as a result of applying the UK Data Protection Laws), then the terms and conditions of the IDTA will still apply to the greatest extent possible.
      
4. How to sign the IDTA
   1. The Parties may choose to each sign (or execute):
      1. the same copy of this IDTA;
      2. two copies of the IDTA. In that case, each identical copy is still an original of this IDTA, and together all those copies form one agreement;
      3. a separate, identical copy of the IDTA. In that case, each identical copy is still an original of this IDTA, and together all those copies form one agreement,
         
         unless signing (or executing) in this way would mean that the IDTA would not be binding on the Parties under Local Laws.
         
5. Changing this IDTA
   1. Each Party must not change the Mandatory Clauses as set out in the Approved IDTA, except only:
      1. to ensure correct cross-referencing: cross-references to Part one: Tables (or any Table), Part two: Extra Protections, and/or Part three: Commercial Clauses can be changed where the Parties have set out the information in a different format, so that the cross-reference is to the correct location of the same information, or where clauses have been removed as they do not apply, as set out below;
      2. to remove those Sections which are expressly stated not to apply to the selections made by the Parties in Table 2: Transfer Details, that the Parties are Controllers, Processors or Sub-Processors and/or that the Importer is subject to, or not subject to, the UK GDPR. The Exporter and Importer understand and acknowledge that any removed Sections may still apply and form a part of this IDTA if they have been removed incorrectly, including because the wrong selection is made in Table 2: Transfer Details;
      3. so the IDTA operates as a multi-party agreement if there are more than two Parties to the IDTA. This may include nominating a lead Party or lead Parties which can make decisions on behalf of some or all of the other Parties which relate to this IDTA (including reviewing Table 4: Security Requirements and Part two: Extra Protection Clauses, and making updates to Part one: Tables (or any Table), Part two: Extra Protection Clauses, and/or Part three: Commercial Clauses); and/or
      4. to update the IDTA to set out in writing any changes made to the Approved IDTA under Section 5.4, if the Parties want to. The changes will apply automatically without updating them as described in Section 5.4;
         
         provided that the changes do not reduce the Appropriate Safeguards.
   2. If the Parties wish to change the format of the information included in Part one: Tables, Part two: Extra Protection Clauses or Part three: Commercial Clauses of the Approved IDTA, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
   3. If the Parties wish to change the information included in Part one: Tables, Part two: Extra Protection Clauses or Part three: Commercial Clauses of this IDTA (or the equivalent information), they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
   4. From time to time, the ICO may publish a revised Approved IDTA which:
      1. makes reasonable and proportionate changes to the Approved IDTA, including correcting errors in the Approved IDTA; and/or
      2. reflects changes to UK Data Protection Laws.
         
         The revised Approved IDTA will specify the start date from which the changes to the Approved IDTA are effective and whether an additional Review Date is required as a result of the changes. This IDTA is automatically amended as set out in the revised Approved IDTA from the start date specified.
         
6. Understanding this IDTA
   1. This IDTA must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
   2. If there is any inconsistency or conflict between UK Data Protection Laws and this IDTA, the UK Data Protection Laws apply.
   3. If the meaning of the IDTA is unclear or there is more than one meaning, the meaning which most closely aligns with the UK Data Protection Laws applies.
   4. Nothing in the IDTA (including the Commercial Clauses or the Linked Agreement) limits or excludes either Party’s liability to Relevant Data Subjects or to the ICO under this IDTA or under UK Data Protection Laws.
   5. If any wording in Parts one, two or three contradicts the Mandatory Clauses, and/or seeks to limit or exclude any liability to Relevant Data Subjects or to the ICO, then that wording will not apply.
   6. The Parties may include provisions in the Linked Agreement which provide the Parties with enhanced rights otherwise covered by this IDTA. These enhanced rights may be subject to commercial terms, including payment, under the Linked Agreement, but this will not affect the rights granted under this IDTA.
   7. If there is any inconsistency or conflict between this IDTA and a Linked Agreement or any other agreement, this IDTA overrides that Linked Agreement or any other agreements, even if those agreements have been negotiated by the Parties. The exceptions to this are where (and in so far as):
      1. The inconsistent or conflicting terms of the Linked Agreement or other agreement provide greater protection for the Relevant Data Subject’s rights, in which case those terms will override the IDTA; and
      2. a Party acts as Processor and the inconsistent or conflicting terms of the Linked Agreement are obligations on that Party expressly required by Article 28 UK GDPR, in which case those terms will override the inconsistent or conflicting terms of the IDTA in relation to Processing by that Party as Processor.
   8. The words “include”, “includes”, “including”, “in particular” are used to set out examples and not to set out a finite list.
   9. References to:
      1. singular or plural words or people, also includes the plural or singular of those words or people;
      2. legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this IDTA has been signed; and
      3. any obligation not to do something, includes an obligation not to allow or cause that thing to be done by anyone else.
         
7. Which laws apply to this IDTA
   1. This IDTA is governed by the laws of the UK country set out in Table 2: Transfer Details. If no selection has been made, it is the laws of England and Wales. This does not apply to Section 35 which is always governed by the laws of England and Wales.
      
8. The Appropriate Safeguards
   1. The purpose of this IDTA is to ensure that the Transferred Data has Appropriate Safeguards when Processed by the Importer during the Term. This standard is met when and for so long as:
      1. both Parties comply with the IDTA, including the Security Requirements and any Extra Protection Clauses; and
      2. the Security Requirements and any Extra Protection Clauses provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach, including considering any Special Category Data within the Transferred Data.
   2. The Exporter must:
      1. ensure and demonstrate that this IDTA (including any Security Requirements and Extra Protection Clauses) provides Appropriate Safeguards; and
      2. (if the Importer reasonably requests) provide it with a copy of any TRA.
   3. The Importer must:
      1. before receiving any Transferred Data, provide the Exporter with all relevant information regarding Local Laws and practices and the protections and risks which apply to the Transferred Data when it is Processed by the Importer, including any information which may reasonably be required for the Exporter to carry out any TRA (the “Importer Information”);
      2. co-operate with the Exporter to ensure compliance with the Exporter’s obligations under the UK Data Protection Laws;
      3. review whether any Importer Information has changed, and whether any Local Laws contradict its obligations in this IDTA and take reasonable steps to verify this, on a regular basis. These reviews must be at least as frequent as the Review Dates; and
      4. inform the Exporter as soon as it becomes aware of any Importer Information changing, and/or any Local Laws which may prevent or limit the Importer complying with its obligations in this IDTA. This information then forms part of the Importer Information.
   4. The Importer must ensure that at the Start Date and during the Term:
      1. the Importer Information is accurate;
      2. it has taken reasonable steps to verify whether there are any Local Laws which contradict its obligations in this IDTA or any additional information regarding Local Laws which may be relevant to this IDTA.
   5. Each Party must ensure that the Security Requirements and Extra Protection Clauses provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.
      
9. Reviews to ensure the Appropriate Safeguards continue
   1. Each Party must:
      1. review this IDTA (including the Security Requirements and Extra Protection Clauses and the Importer Information) at regular intervals, to ensure that the IDTA remains accurate and up to date and continues to provide the Appropriate Safeguards. Each Party will carry out these reviews as frequently as the relevant Review dates or sooner; and
      2. inform the other party in writing as soon as it becomes aware if any information contained in either this IDTA, any TRA or Importer Information is no longer accurate and up to date.
   2. If, at any time, the IDTA no longer provides Appropriate Safeguards the Parties must Without Undue Delay:
      1. pause transfers and Processing of Transferred Data whilst a change to the Tables is agreed. The Importer may retain a copy of the Transferred Data during this pause, in which case the Importer must carry out any Processing required to maintain, so far as possible, the measures it was taking to achieve the Appropriate Safeguards prior to the time the IDTA no longer provided Appropriate Safeguards, but no other Processing;
      2. agree a change to Part one: Tables or Part two: Extra Protection Clauses which will maintain the Appropriate Safeguards (in accordance with Section 5); and
      3. where a change to Part one: Tables or Part two: Extra Protection Clauses which maintains the Appropriate Safeguards cannot be agreed, the Exporter must end this IDTA by written notice on the Importer.
         
10. The ICO
    1. Each Party agrees to comply with any reasonable requests made by the ICO in relation to this IDTA or its Processing of the Transferred Data.
    2. The Exporter will provide a copy of any TRA, the Importer Information and this IDTA to the ICO, if the ICO requests.
    3. The Importer will provide a copy of any Importer Information and this IDTA to the ICO, if the ICO requests.
       
11. Exporter’s obligations
    1. The Exporter agrees that UK Data Protection Laws apply to its Processing of the Transferred Data, including transferring it to the Importer.
    2. The Exporter must:
       1. comply with the UK Data Protection Laws in transferring the Transferred Data to the Importer;
       2. comply with the Linked Agreement as it relates to its transferring the Transferred Data to the Importer; and
       3. carry out reasonable checks on the Importer’s ability to comply with this IDTA, and take appropriate action including under Section 9.2, Section 29 or Section 30, if at any time it no longer considers that the Importer is able to comply with this IDTA or to provide Appropriate Safeguards.
    3. The Exporter must comply with all its obligations in the IDTA, including any in the Security Requirements, and any Extra Protection Clauses and any Commercial Clauses.
    4. The Exporter must co-operate with reasonable requests of the Importer to pass on notices or other information to and from Relevant Data Subjects or any Third Party Controller where it is not reasonably practical for the Importer to do so. The Exporter may pass these on via a third party if it is reasonable to do so.
    5. The Exporter must co-operate with and provide reasonable assistance to the Importer, so that the Importer is able to comply with its obligations to the Relevant Data Subjects under Local Law and this IDTA.
       
12. General Importer obligations
    1. The Importer must:
       1. only Process the Transferred Data for the Purpose;
       2. comply with all its obligations in the IDTA, including in the Security Requirements, any Extra Protection Clauses and any Commercial Clauses;
       3. comply with all its obligations in the Linked Agreement which relate to its Processing of the Transferred Data;
       4. keep a written record of its Processing of the Transferred Data, which demonstrate its compliance with this IDTA, and provide this written record if asked to do so by the Exporter;
       5. if the Linked Agreement includes rights for the Exporter to obtain information or carry out an audit, provide the Exporter with the same rights in relation to this IDTA; and
       6. if the ICO requests, provide the ICO with the information it would be required on request to provide to the Exporter under this Section 12.1 (including the written record of its Processing, and the results of audits and inspections).
    2. The Importer must co-operate with and provide reasonable assistance to the Exporter and any Third Party Controller, so that the Exporter and any Third Party Controller are able to comply with their obligations under UK Data Protection Laws and this IDTA.
       
13. Importer’s obligations if it is subject to the UK Data Protection Laws
    1. If the Importer’s Processing of the Transferred Data is subject to UK Data Protection Laws, it agrees that:
       1. UK Data Protection Laws apply to its Processing of the Transferred Data, and the ICO has jurisdiction over it in that respect; and
       2. it has and will comply with the UK Data Protection Laws in relation to the Processing of the Transferred Data.
    2. If Section 13.1 applies and the Importer complies with Section 13.1, it does not need to comply with:
       1. Section 14 (Importer’s obligations to comply with key data protection principles);
       2. Section 15 (What happens if there is an Importer Personal Data Breach);
       3. Section 15 (How Relevant Data Subjects can exercise their data subject rights); and
       4. Section 21 (How Relevant Data Subjects can exercise their data subject rights – if the Importer is the Exporter’s Processor or Sub-Processor).
          
14. Importer’s obligations to comply with key data protection principles
    1. The Importer does not need to comply with this Section 14 if it is the Exporter’s Processor or Sub-Processor.
    2. The Importer must:
       1. ensure that the Transferred Data it Processes is adequate, relevant and limited to what is necessary for the Purpose;
       2. ensure that the Transferred Data it Processes is accurate and (where necessary) kept up to date, and (where appropriate considering the Purposes) correct or delete any inaccurate Transferred Data it becomes aware of Without Undue Delay; and
       3. ensure that it Processes the Transferred Data for no longer than is reasonably necessary for the Purpose.
          
15. What happens if there is an Importer Personal Data Breach
    1. If there is an Importer Personal Data Breach, the Importer must:
       1. take reasonable steps to fix it, including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again. If the Importer is the Exporter’s Processor or Sub-Processor: these steps must comply with the Exporter’s instructions and the Linked Agreement and be in co-operation with the Exporter and any Third Party Controller; and
       2. ensure that the Security Requirements continue to provide (or are changed in accordance with this IDTA so they do provide) a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.
    2. If the Importer is a Processor or Sub-Processor: if there is an Importer Personal Data Breach, the Importer must:
       1. notify the Exporter Without Undue Delay after becoming aware of the breach, providing the following information:
          1. a description of the nature of the Importer Personal Data Breach;
          2. (if and when possible) the categories and approximate number of Data Subjects and Transferred Data records concerned;
          3. likely consequences of the Importer Personal Data Breach;
          4. steps taken (or proposed to be taken) to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Appropriate Safeguards are in place;
          5. contact point for more information; and
          6. any other information reasonably requested by the Exporter,
       2. if it is not possible for the Importer to provide all the above information at the same time, it may do so in phases, Without Undue Delay; and
       3. assist the Exporter (and any Third Party Controller) so the Exporter (or any Third Party Controller) can inform Relevant Data Subjects or the ICO or any other relevant regulator or authority about the Importer Personal Data Breach Without Undue Delay.
    3. If the Importer is a Controller: if the Importer Personal Data Breach is likely to result in a risk to the rights or freedoms of any Relevant Data Subject the Importer must notify the Exporter Without Undue Delay after becoming aware of the breach, providing the following information:
       1. a description of the nature of the Importer Personal Data Breach;
       2. (if and when possible) the categories and approximate number of Data Subjects and Transferred Data records concerned;
       3. likely consequences of the Importer Personal Data Breach;
       4. steps taken (or proposed to be taken) to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Appropriate Safeguards are in place;
       5. contact point for more information; and
       6. any other information reasonably requested by the Exporter.
          
          If it is not possible for the Importer to provide all the above information at the same time, it may do so in phases, Without Undue Delay.
    4. If the Importer is a Controller: if the Importer Personal Data Breach is likely to result in a high risk to the rights or freedoms of any Relevant Data Subject, the Importer must inform those Relevant Data Subjects Without Undue Delay, except in so far as it requires disproportionate effort, and provided the Importer ensures that there is a public communication or similar measures whereby Relevant Data Subjects are informed in an equally effective manner.
    5. The Importer must keep a written record of all relevant facts relating to the Importer Personal Data Breach, which it will provide to the Exporter and the ICO on request.
       
       This record must include the steps it takes to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Security Requirements continue to provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.
       
16. Transferring on the Transferred Data
    1. The Importer may only transfer on the Transferred Data to a third party if it is permitted to do so in Table 2: Transfer Details Table, the transfer is for the Purpose, the transfer does not breach the Linked Agreement, and one or more of the following apply:
       1. the third party has entered into a written contract with the Importer containing the same level of protection for Data Subjects as contained in this IDTA (based on the role of the recipient as controller or processor), and the Importer has conducted a risk assessment to ensure that the Appropriate Safeguards will be protected by that contract; or
       2. the third party has been added to this IDTA as a Party; or
       3. if the Importer was in the UK, transferring on the Transferred Data would comply with Article 46 UK GDPR; or
       4. if the Importer was in the UK transferring on the Transferred Data would comply with one of the exceptions in Article 49 UK GDPR; or
       5. the transfer is to the UK or an Adequate Country.
    2. The Importer does not need to comply with Section 16.1 if it is transferring on Transferred Data and/or allowing access to the Transferred Data in accordance with Section 23 (Access Requests and Direct Access).
       
17. Importer’s responsibility if it authorises others to perform its obligations
    1. The Importer may sub-contract its obligations in this IDTA to a Processor or Sub-Processor (provided it complies with Section 16).
    2. If the Importer is the Exporter’s Processor or Sub-Processor: it must also comply with the Linked Agreement or be with the written consent of the Exporter.
    3. The Importer must ensure that any person or third party acting under its authority, including a Processor or Sub-Processor, must only Process the Transferred Data on its instructions.
    4. The Importer remains fully liable to the Exporter, the ICO and Relevant Data Subjects for its obligations under this IDTA where it has sub-contracted any obligations to its Processors and Sub-Processors, or authorised an employee or other person to perform them (and references to the Importer in this context will include references to its Processors, Sub-Processors or authorised persons).
       
18. What rights do individuals have?
    
    The right to a copy of the IDTA
    1. If a Party receives a request from a Relevant Data Subject for a copy of this IDTA:
       1. it will provide the IDTA to the Relevant Data Subject and inform the other Party, as soon as reasonably possible;
       2. it does not need to provide copies of the Linked Agreement, but it must provide all the information from those Linked Agreements referenced in the Tables;
       3. it may redact information in the Tables or the information provided from the Linked Agreement if it is reasonably necessary to protect business secrets or confidential information, so long as it provides the Relevant Data Subject with a summary of those redactions so that the Relevant Data Subject can understand the content of the Tables or the information provided from the Linked Agreement.
          
19. The right to Information about the Importer and its Processing
    1. The Importer does not need to comply with this Section 19 if it is the Exporter’s Processor or Sub-Processor.
    2. The Importer must ensure that each Relevant Data Subject is provided with details of:
       1. the Importer (including contact details and the Importer Data Subject Contact);
       2. the Purposes; and
       3. any recipients (or categories of recipients) of the Transferred Data;
          
          The Importer can demonstrate it has complied with this Section 19.2 if the information is given (or has already been given) to the Relevant Data Subjects by the Exporter or another party.
          
          The Importer does not need to comply with this Section 19.2 in so far as to do so would be impossible or involve a disproportionate effort, in which case, the Importer must make the information publicly available.
    3. The Importer must keep the details of the Importer Data Subject Contact up to date and publicly available. This includes notifying the Exporter in writing of any such changes.
    4. The Importer must make sure those contact details are always easy to access for all Relevant Data Subjects and be able to easily communicate with Data Subjects in the English language Without Undue Delay.
       
20. How Relevant Data Subjects can exercise their data subject rights
    1. The Importer does not need to comply with this Section 20 if it is the Exporter’s Processor or Sub-Processor.
    2. If an individual requests, the Importer must confirm whether it is Processing their Personal Data as part of the Transferred Data.
    3. The following Sections of this Section 20, relate to a Relevant Data Subject’s Personal Data which forms part of the Transferred Data the Importer is Processing.
    4. If the Relevant Data Subject requests, the Importer must provide them with a copy of their Transferred Data:
       1. Without Undue Delay (and in any event within one month);
       2. at no greater cost to the Relevant Data Subject than it would be able to charge if it were subject to the UK Data Protection Laws;
       3. in clear and plain English that is easy to understand; and
       4. in an easily accessible form
          
          together with
          
       5. (if needed) a clear and plain English explanation of the Transferred Data so that it is understandable to the Relevant Data Subject; and
       6. information that the Relevant Data Subject has the right to bring a claim for compensation under this IDTA.
    5. If a Relevant Data Subject requests, the Importer must:
       1. rectify inaccurate or incomplete Transferred Data;
       2. erase Transferred Data if it is being Processed in breach of this IDTA;
       3. cease using it for direct marketing purposes; and
       4. comply with any other reasonable request of the Relevant Data Subject, which the Importer would be required to comply with if it were subject to the UK Data Protection Laws.
    6. The Importer must not use the Transferred Data to make decisions about the Relevant Data Subject based solely on automated processing, including profiling (the “Decision-Making”), which produce legal effects concerning the Relevant Data Subject or similarly significantly affects them, except if it is permitted by Local Law and:
       1. the Relevant Data Subject has given their explicit consent to such Decision-Making; or
       2. Local Law has safeguards which provide sufficiently similar protection for the Relevant Data Subjects in relation to such Decision-Making, as to the relevant protection the Relevant Data Subject would have if such Decision-Making was in the UK; or
       3. the Extra Protection Clauses provide safeguards for the Decision-Making which provide sufficiently similar protection for the Relevant Data Subjects in relation to such Decision-Making, as to the relevant protection the Relevant Data Subject would have if such Decision-Making was in the UK.
          
21. How Relevant Data Subjects can exercise their data subject rights– if the Importer is the Exporter’s Processor or Sub-Processor
    1. Where the Importer is the Exporter’s Processor or Sub-Processor: If the Importer receives a request directly from an individual which relates to the Transferred Data it must pass that request on to the Exporter Without Undue Delay. The Importer must only respond to that individual as authorised by the Exporter or any Third Party Controller.
       
22. Rights of Relevant Data Subjects are subject to the exemptions in the UK Data Protection Laws
    1. The Importer is not required to respond to requests or provide information or notifications under Sections 18, 19, 20, 21 and 23 if:
       1. it is unable to reasonably verify the identity of an individual making the request; or
       2. the requests are manifestly unfounded or excessive, including where requests are repetitive. In that case the Importer may refuse the request or may charge the Relevant Data Subject a reasonable fee; or
       3. a relevant exemption would be available under UK Data Protection Laws, were the Importer subject to the UK Data Protection Laws.
          
          If the Importer refuses an individual’s request or charges a fee under Section 22.1.2 it will set out in writing the reasons for its refusal or charge, and inform the Relevant Data Subject that they are entitled to bring a claim for compensation under this IDTA in the case of any breach of this IDTA.
          
23. Access requests and direct access
    1. In this Section ‎23 an “Access Request” is a legally binding request (except for requests only binding by contract law) to access any Transferred Data and “Direct Access” means direct access to any Transferred Data by public authorities of which the Importer is aware.
    2. The Importer may disclose any requested Transferred Data in so far as it receives an Access Request, unless in the circumstances it is reasonable for it to challenge that Access Request on the basis there are significant grounds to believe that it is unlawful.
    3. In so far as Local Laws allow and it is reasonable to do so, the Importer will Without Undue Delay provide the following with relevant information about any Access Request or Direct Access: the Exporter; any Third Party Controller; and where the Importer is a Controller, any Relevant Data Subjects.
    4. In so far as Local Laws allow, the Importer must:
       1. make and keep a written record of Access Requests and Direct Access, including (if known): the dates, the identity of the requestor/accessor, the purpose of the Access Request or Direct Access, the type of data requested or accessed, whether it was challenged or appealed, and the outcome; and the Transferred Data which was provided or accessed; and
       2. provide a copy of this written record to the Exporter on each Review Date and any time the Exporter or the ICO reasonably requests.
          
24. Giving notice
    1. If a Party is required to notify any other Party in this IDTA it will be marked for the attention of the relevant Key Contact and sent by e-mail to the e-mail address given for the Key Contact.
    2. If the notice is sent in accordance with Section 24.1, it will be deemed to have been delivered at the time the e-mail was sent, or if that time is outside of the receiving Party’s normal business hours, the receiving Party’s next normal business day, and provided no notice of non-delivery or bounceback is received.
    3. The Parties agree that any Party can update their Key Contact details by giving 14 days’ (or more) notice in writing to the other Party.
       
25. General clauses
    1. In relation to the transfer of the Transferred Data to the Importer and the Importer’s Processing of the Transferred Data, this IDTA and any Linked Agreement:
       1. contain all the terms and conditions agreed by the Parties; and
       2. override all previous contacts and arrangements, whether oral or in writing.
    2. If one Party made any oral or written statements to the other before entering into this IDTA (which are not written in this IDTA) the other Party confirms that it has not relied on those statements and that it will not have a legal remedy if those statements are untrue or incorrect, unless the statement was made fraudulently.
    3. Neither Party may novate, assign or obtain a legal charge over this IDTA (in whole or in part) without the written consent of the other Party, which may be set out in the Linked Agreement.
    4. Except as set out in Section 17.1, neither Party may sub contract its obligations under this IDTA without the written consent of the other Party, which may be set out in the Linked Agreement.
    5. This IDTA does not make the Parties a partnership, nor appoint one Party to act as the agent of the other Party.
    6. If any Section (or part of a Section) of this IDTA is or becomes illegal, invalid or unenforceable, that will not affect the legality, validity and enforceability of any other Section (or the rest of that Section) of this IDTA.
    7. If a Party does not enforce, or delays enforcing, its rights or remedies under or in relation to this IDTA, this will not be a waiver of those rights or remedies. In addition, it will not restrict that Party’s ability to enforce those or any other right or remedy in future.
    8. If a Party chooses to waive enforcing a right or remedy under or in relation to this IDTA, then this waiver will only be effective if it is made in writing. Where a Party provides such a written waiver:
       1. it only applies in so far as it explicitly waives specific rights or remedies;
       2. it shall not prevent that Party from exercising those rights or remedies in the future (unless it has explicitly waived its ability to do so); and
       3. it will not prevent that Party from enforcing any other right or remedy in future.
          
26. Breaches of this IDTA
    1. Each Party must notify the other Party in writing (and with all relevant details) if it:
       1. has breached this IDTA; or
       2. it should reasonably anticipate that it may breach this IDTA, and provide any information about this which the other Party reasonably requests.
    2. In this IDTA “Significant Harmful Impact” means that there is more than a minimal risk of a breach of the IDTA causing (directly or indirectly) significant damage to any Relevant Data Subject or the other Party.
       
27. Breaches of this IDTA by the Importer
    1. If the Importer has breached this IDTA, and this has a Significant Harmful Impact, the Importer must take steps Without Undue Delay to end the Significant Harmful Impact, and if that is not possible to reduce the Significant Harmful Impact as much as possible.
    2. Until there is no ongoing Significant Harmful Impact on Relevant Data Subjects:
       1. the Exporter must suspend sending Transferred Data to the Importer;
       2. If the Importer is the Exporter’s Processor or Sub-Processor: if the Exporter requests, the importer must securely delete all Transferred Data or securely return it to the Exporter (or a third party named by the Exporter); and
       3. if the Importer has transferred on the Transferred Data to a third party receiver under Section 16, and the breach has a Significant Harmful Impact on Relevant Data Subject when it is Processed by or on behalf of that third party receiver, the Importer must:
          1. notify the third party receiver of the breach and suspend sending it Transferred Data; and
          2. if the third party receiver is the Importer’s Processor or Sub-Processor: make the third party receiver securely delete all Transferred Data being Processed by it or on its behalf, or securely return it to the Importer (or a third party named by the Importer).
    3. If the breach cannot be corrected Without Undue Delay, so there is no ongoing Significant Harmful Impact on Relevant Data Subjects, the Exporter must end this IDTA under Section 30.1.
       
28. Breaches of this IDTA by the Exporter
    1. If the Exporter has breached this IDTA, and this has a Significant Harmful Impact, the Exporter must take steps Without Undue Delay to end the Significant Harmful Impact and if that is not possible to reduce the Significant Harmful Impact as much as possible.
    2. Until there is no ongoing risk of a Significant Harmful Impact on Relevant Data Subjects, the Exporter must suspend sending Transferred Data to the Importer.
    3. If the breach cannot be corrected Without Undue Delay, so there is no ongoing Significant Harmful Impact on Relevant Data Subjects, the Importer must end this IDTA under Section 30.1.
       
29. How to end this IDTA without there being a breach
    1. The IDTA will end:
       1. at the end of the Term stated in Table 2: Transfer Details; or
       2. if in Table 2: Transfer Details, the Parties can end this IDTA by providing written notice to the other: at the end of the notice period stated;
       3. at any time that the Parties agree in writing that it will end; or
       4. at the time set out in Section 29.2.
    2. If the ICO issues a revised Approved IDTA under Section 5.4, if any Party selected in Table 2 “Ending the IDTA when the Approved IDTA changes”, will as a direct result of the changes in the Approved IDTA have a substantial, disproportionate and demonstrable increase in:
       1. its direct costs of performing its obligations under the IDTA; and/or
       2. its risk under the IDTA,
          
          and in either case it has first taken reasonable steps to reduce that cost or risk so that it is not substantial and disproportionate, that Party may end the IDTA at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved IDTA.
          
30. How to end this IDTA if there is a breach
    1. A Party may end this IDTA immediately by giving the other Party written notice if:
       1. the other Party has breached this IDTA and this has a Significant Harmful Impact. This includes repeated minor breaches which taken together have a Significant Harmful Impact, and
          1. the breach can be corrected so there is no Significant Harmful Impact, and the other Party has failed to do so Without Undue Delay (which cannot be more than 14 days of being required to do so in writing); or
          2. the breach and its Significant Harmful Impact cannot be corrected;
       2. the Importer can no longer comply with Section 8.3, as there are Local Laws which mean it cannot comply with this IDTA and this has a Significant Harmful Impact.
          
31. What must the Parties do when the IDTA ends?
    1. If the parties wish to bring this IDTA to an end or this IDTA ends in accordance with any provision in this IDTA, but the Importer must comply with a Local Law which requires it to continue to keep any Transferred Data then this IDTA will remain in force in respect of any retained Transferred Data for as long as the retained Transferred Data is retained, and the Importer must:
       1. notify the Exporter Without Undue Delay, including details of the relevant Local Law and the required retention period;
       2. retain only the minimum amount of Transferred Data it needs to comply with that Local Law, and the Parties must ensure they maintain the Appropriate Safeguards, and change the Tables and Extra Protection Clauses, together with any TRA to reflect this; and
       3. stop Processing the Transferred Data as soon as permitted by that Local Law and the IDTA will then end and the rest of this Section 29 will apply.
    2. When this IDTA ends (no matter what the reason is):
       1. the Exporter must stop sending Transferred Data to the Importer; and
       2. if the Importer is the Exporter’s Processor or Sub-Processor: the Importer must delete all Transferred Data or securely return it to the Exporter (or a third party named by the Exporter), as instructed by the Exporter;
       3. if the Importer is a Controller and/or not the Exporter’s Processor or Sub-Processor: the Importer must securely delete all Transferred Data.
       4. the following provisions will continue in force after this IDTA ends (no matter what the reason is):
          1. Section 1 (This IDTA and Linked Agreements);
          2. Section 2 (Legal Meaning of Words);
          3. Section 6 (Understanding this IDTA);
          4. Section 7 (Which laws apply to this IDTA);
          5. Section 10 (The ICO);
          6. Sections 11.1 and 11.4 (Exporter’s obligations);
          7. Sections 12.1.2, 12.1.3, 12.1.4, 12.1.5 and 12.1.6 (General Importer obligations);
          8. Section 13.1 (Importer’s obligations if it is subject to UK Data Protection Laws);
          9. Section 17 (Importer’s responsibility if it authorised others to perform its obligations);
          10. Section 24 (Giving notice);
          11. Section 25 (General clauses);
          12. Section 31 (What must the Parties do when the IDTA ends);
          13. Section 32 (Your liability);
          14. Section 33 (How Relevant Data Subjects and the ICO may bring legal claims);
          15. Section 34 (Courts legal claims can be brought in);
          16. Section 35 (Arbitration); and
          17. Section 36 (Legal Glossary).
              
32. How to bring a legal claim under this IDTA
    
    Your liability
    1. The Parties remain fully liable to Relevant Data Subjects for fulfilling their obligations under this IDTA and (if they apply) under UK Data Protection Laws.
    2. Each Party (in this Section, “Party One”) agrees to be fully liable to Relevant Data Subjects for the entire damage suffered by the Relevant Data Subject, caused directly or indirectly by:
       1. Party One’s breach of this IDTA; and/or
       2. where Party One is a Processor, Party One’s breach of any provisions regarding its Processing of the Transferred Data in the Linked Agreement;
       3. where Party One is a Controller, a breach of this IDTA by the other Party if it involves Party One’s Processing of the Transferred Data (no matter how minimal)
          
          in each case unless Party One can prove it is not in any way responsible for the event giving rise to the damage.
    3. If one Party has paid compensation to a Relevant Data Subject under Section 32.2, it is entitled to claim back from the other Party that part of the compensation corresponding to the other Party’s responsibility for the damage, so that the compensation is fairly divided between the Parties.
    4. The Parties do not exclude or restrict their liability under this IDTA or UK Data Protection Laws, on the basis that they have authorised anyone who is not a Party (including a Processor) to perform any of their obligations, and they will remain responsible for performing those obligations.
       
33. How Relevant Data Subjects and the ICO may bring legal claims
    1. The Relevant Data Subjects are entitled to bring claims against the Exporter and/or Importer for breach of the following (including where their Processing of the Transferred Data is involved in a breach of the following by either Party):
       1. Section 1 (This IDTA and Linked Agreements);
       2. Section 3 (You have provided all the information required by Part one: Tables and Part two: Extra Protection Clauses);
       3. Section 8 (The Appropriate Safeguards);
       4. Section 9 (Reviews to ensure the Appropriate Safeguards continue);
       5. Section 11 (Exporter’s obligations);
       6. Section 12 (General Importer Obligations);
       7. Section 13 (Importer’s obligations if it is subject to UK Data Protection Laws);
       8. Section 14 (Importer’s obligations to comply with key data protection laws);
       9. Section 15 (What happens if there is an Importer Personal Data Breach);
       10. Section 16 (Transferring on the Transferred Data);
       11. Section 17 (Importer’s responsibility if it authorises others to perform its obligations);
       12. Section 18 (The right to a copy of the IDTA);
       13. Section 19 (The Importer’s contact details for the Relevant Data Subjects);
       14. Section 20 (How Relevant Data Subjects can exercise their data subject rights);
       15. Section 21 (How Relevant Data Subjects can exercise their data subject rights– if the Importer is the Exporter’s Processor or Sub-Processor);
       16. Section 23 (Access Requests and Direct Access);
       17. Section 26 (Breaches of this IDTA);
       18. Section 27 (Breaches of this IDTA by the Importer);
       19. Section 28 (Breaches of this IDTA by the Exporter);
       20. Section 30 (How to end this IDTA if there is a breach);
       21. Section 31 (What must the Parties do when the IDTA ends); and
       22. any other provision of the IDTA which expressly or by implication benefits the Relevant Data Subjects.
    2. The ICO is entitled to bring claims against the Exporter and/or Importer for breach of the following Sections: Section 10 (The ICO), Sections 11.1 and 11.2 (Exporter’s obligations), Section 12.1.6 (General Importer obligations) and Section 13 (Importer’s obligations if it is subject to UK Data Protection Laws).
    3. No one else (who is not a Party) can enforce any part of this IDTA (including under the Contracts (Rights of Third Parties) Act 1999).
    4. The Parties do not need the consent of any Relevant Data Subject or the ICO to make changes to this IDTA, but any changes must be made in accordance with its terms.
    5. In bringing a claim under this IDTA, a Relevant Data Subject may be represented by a not-for-profit body, organisation or association under the same conditions set out in Article 80(1) UK GDPR and sections 187 to 190 of the Data Protection Act 2018.
       
34. Courts legal claims can be brought in
    1. The courts of the UK country set out in Table 2: Transfer Details have non-exclusive jurisdiction over any claim in connection with this IDTA (including non-contractual claims).
    2. The Exporter may bring a claim against the Importer in connection with this IDTA (including non-contractual claims) in any court in any country with jurisdiction to hear the claim.
    3. The Importer may only bring a claim against the Exporter in connection with this IDTA (including non-contractual claims) in the courts of the UK country set out in the Table 2: Transfer Details
    4. Relevant Data Subjects and the ICO may bring a claim against the Exporter and/or the Importer in connection with this IDTA (including non-contractual claims) in any court in any country with jurisdiction to hear the claim.
    5. Each Party agrees to provide to the other Party reasonable updates about any claims or complaints brought against it by a Relevant Data Subject or the ICO in connection with the Transferred Data (including claims in arbitration).
       
35. Arbitration
    1. Instead of bringing a claim in a court under Section 34, any Party, or a Relevant Data Subject may elect to refer any dispute arising out of or in connection with this IDTA (including non-contractual claims) to final resolution by arbitration under the Rules of the London Court of International Arbitration, and those Rules are deemed to be incorporated by reference into this Section ‎35.
    2. The Parties agree to submit to any arbitration started by another Party or by a Relevant Data Subject in accordance with this Section ‎‎35.
    3. There must be only one arbitrator. The arbitrator (1) must be a lawyer qualified to practice law in one or more of England and Wales, or Scotland, or Northern Ireland and (2) must have experience of acting or advising on disputes relating to UK Data Protection Laws.
    4. London shall be the seat or legal place of arbitration. It does not matter if the Parties selected a different UK country as the ‘primary place for legal claims to be made’ in Table 2: Transfer Details.
    5. The English language must be used in the arbitral proceedings.
    6. English law governs this Section ‎‎35. This applies regardless of whether or not the parties selected a different UK country’s law as the ‘UK country’s law that governs the IDTA’ in Table 2: Transfer Details.
       
36. Legal Glossary

Alternative Part 4: Mandatory Clauses