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    Data Processing Addendum

    This Data Processing Addendum (“DPA”) amends and supplements any agreement between _________________ (“Company”) and BetterUp, Inc. (“BetterUp”) (each a “Party” and collectively “Parties”) involving the processing of Customer Personal Data (each, an “Agreement”) and is hereby incorporated by reference into the Agreement. All capitalized terms not otherwise defined in this DPA will have the meaning given to them in the Agreement. If there is any inconsistency or conflict between this DPA and the Agreement or an Order, as it relates to data protection, this DPA will govern.

    1. Definitions

      “Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, individual’s device, or household. Personal data includes but is not limited to name, alias, postal address, unique personal identifier, online identifier internet protocol Internet Protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers.

      “Data Subject” means the individual to whom Personal Data relates.

      “Standard Contractual Clauses” in relation to the Processing of Personal Data pursuant to this Agreement means the standard clauses for the transfer of Personal Data to Third Countries as updated, amended, replaced or superseded from time to time by the European Commission, the approved version of which in force at present is that set out in the European Commission's Decision 2021/914/EU of 4 June 2021, available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32021D0914.

      “Data Protection Laws” means as applicable relating to privacy, security, data protection, or confidentiality or the use, safeguarding, and Processing of Personal Data, as may be defined in such provisions: (a) the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (b) the Federal Data Protection Act of 19 June 1992 (Switzerland) (“Swiss DPA”); (c) the UK Data Protection Act 2018 (“UK DPA”); (d) Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003; (e) the California Consumer Protection Act (“CCPA”); (f) or any laws or regulations that succeed, replace, amend, or supplement the foregoing.

      “Process” or “Processing” means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Personal Data.

      “Security Breach” means a breach of security involving the BetterUp Platform or BetterUp Services leading to the accidental or unlawful destruction, loss, misuse, alteration, disruption, acquisition, or unauthorized disclosure of, damage, or access to, Personal Data transmitted, stored or otherwise Processed or any event that may adversely affect the privacy or security of Data Subjects including any other type of security breach under Data Protection Laws.

      The terms “controller,” “processor,” and “supervisory authority” as used in this DPA will have the meanings ascribed to them in the GDPR or other Data Protection Laws.

      2.Processing of Data
      1. Purpose of Processing. The purpose of data Processing under this Agreement is the provision of the Services pursuant to the Agreement. Parties hereby agree to such details as may be required under Annex 1 to this DPA.
      1. Relationship of the Parties. The Parties agree that pursuant to the terms of this Agreement, BetterUp will process certain Personal Data in connection with the BetterUp Platform and BetterUp Services. Depending on the type of Personal Data BetterUp will either be a controller or processor, as follows:
        1. Eligibility Data: Company is a controller and BetterUp will be a processor with respect to Personal Data processed in the context of the processing of Data Subjects’ personal data for the purposes of validating the eligibility of the Data Subjects to use the Services, charging for the Services and providing support and maintenance for the Services, pursuant to the Agreement. Company determines the purposes for processing and will comply with the specific controller obligations set forth within this DPA.
        2. User Data: With respect to personal data processed for the purposes of providing the Services by direct interaction with the Data Subjects, BetterUp will be an independent controller of all User Data. BetterUp will be a controller of User Data collected through and contained in the BetterUp Platform. BetterUp alone determines the purposes and essential means of processing of personal data for the purposes of providing the Services.
    2.3 Responsibilities of the Parties.
    1. (a) Independent Data Controller Obligations: To the extent BetterUp and Company are acting as independent controllers, the Parties agree they will each comply with the obligations applicable to it under the Data Protection Laws with respect to the Processing of Personal Data. The parties acknowledge and agree that each party’s compliance with applicable Data Protection Laws may be dependent on the other party’s compliance with their own obligations under applicable Data Protection Laws or this DPA and accordingly the first party will not be liable under this DPA for failure to comply with applicable Data Protection Laws where such failure results from a failure of the other party to comply with its own obligations under applicable Data Protection Laws or this DPA.
    2. (b) Each party agrees to inform all its representatives about the disclosure and processing of their personal data by the other party for the purpose of the adequate management of the contractual relationship and communications, and that they may exercise their rights under Data Protection Laws.
    Data Processor Obligations:
    The Parties acknowledge and agree that, BetterUp in its role as a Data Processor shall:
    Responsibilities of the Parties.
    The Parties acknowledge and agree that, BetterUp in its role as a Data Processor shall:
    1. Process Personal Data for the specific purpose of, and as necessary to, implement and provide the BetterUp Services to Company in accordance with this Agreement. Parties agree that BetterUp Processes Customer Personal Data on Company’s behalf and it does so following Company’s instructions and in compliance with applicable Data Protection Laws.
    2. Use, retain, and disclose Customer Personal Data, only as necessary for the specific business purpose of performing the BetterUp Services to Company as described in the Agreement. BetterUp shall not sell such personal data, nor use, retain, or disclose such Customer Personal data outside of its business relationship with the Company or for any other purpose except as required by law. If BetterUp is compelled to do so by applicable law, it shall inform Company of that legal requirement before complying, unless providing such notice is prohibited by law.
    3. Ensure that BetterUp personnel authorized to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
    4. inform the Company of any subprocessors engaged by BetterUp to provide certain limited or ancillary services on Company’s behalf and any intended changes concerning the addition or replacement of subprocessors, thereby giving the Company the opportunity to object to such changes. If BetterUp engages new subprocessors, BetterUp will give Company notice at least 30-days in advance of providing that subprocessor with access to Customer Personal Data. If Company does not approve of a new subprocessor, Company may terminate the Agreement without penalty by providing, before the end of the notice period, written notice of termination that includes an explanation of the grounds for non-approval. Where BetterUp engages a subprocessor for carrying out specific processing activities on behalf of Company, the same data protection obligations as set out in this DPA shall be imposed on that subprocessor by way of a contract. Where that subprocessor fails to fulfil its data protection obligations, BetterUp shall remain fully liable to Company for the performance of that subprocessor's obligations. Company agrees to and hereby provides general written authorization to BetterUp to engage subprocessors) to provide certain limited or ancillary services on its behalf.
    5. Comply at all times with, and assist Company in complying with its applicable obligations under, applicable Data Protection Laws. BetterUp shall provide any information requested by Company to demonstrate compliance with the obligations set out in this DPA. BetterUp shall not perform its obligations under this Agreement in such a way as to cause Company to breach any of its obligations under applicable Data Protection Laws. BetterUp will notify Company immediately if, in BetterUp’s opinion, an instruction for the processing of Customer Personal Data infringes applicable Data Protection Laws.
    6. cooperate and reasonably assist Company with its compliance obligations required under Data Protection Laws including:
      1. conducting a data protection impact assessment;
      2. any consultations with the supervisory authority;
    • upon written request from Company from time to time provide Company with information necessary to demonstrate compliance, including of the measures BetterUp has taken to comply with its obligations under this Agreement, and will at its own cost implement any further steps that are appropriate for its own compliance including contribute to audits, inspections, conducted by the Company or another auditor mandated by the Company; and
    • promptly assist Company in relation to a request to amend, transfer, or delete any of the Personal Data processed by BetterUp, necessary to allow such to comply with its responsibilities as a Controller, except for any data retained in compliance with legal requirements, provided that BetterUp when retaining such information continues to comply with applicable requirements of this Agreement with respect to such retained Personal Data.
    Security, Incident Response, and Audits.

    • Parties shall implement and maintain commercially reasonable administrative, technical and physical safeguards, including procedures and practices commensurate with the level of sensitivity of the Personal Data and the nature of its activities under the Agreement, to protect the security, confidentiality, and integrity of any Personal Data Processed by each Party or in Party’s possession and control including such safeguards (a) designed to ensure the security of systems upon which Personal Data is Processed; and (b) designed to prevent any Security Breach. In the event of any actual Security Breach, both Parties shall take appropriate and prompt steps to notify the other Party of such Security Breach after the Party discovers or learns of such Security Breach.
    • When BetterUp is Processing Personal Data as a Data Processor, BetterUp will also:
      1. adhere to detailed security requirements described in Appendix 1;
      2. take reasonable steps to: (i) furnish to Company full details of the Security Breach; (ii) investigate, mitigate, and remedy the Security Breach and prevent further Security Breaches without unreasonable delay; (c) assist and cooperate with Company, as required by Applicable Data Protection Laws, to provide notices to supervisory authority and Data Subjects; and (d) cooperate with Company in any litigation or regulatory action related to the Security Breach; and
      3. upon request by Company, and no more than annually, procure audit reports covering the adequacy of the security of (i) Personal Data in BetterUp’s possession or control and (ii) BetterUp’s systems that collect process, transmit, or store Personal Data.
    1. Data Transfers
    • When BetterUp is acting as a Data Processor, BetterUp shall process Personal Data in the US, the EU, or such other country, territory or region authorized by Company and shall not transfer Personal Data to a third country or an international organisation, unless required to do so by applicable law, in such a case, BetterUp shall inform Company of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
    • With regard to Personal Data subject to any Data Protection Laws (including the GDPR, UK DPA 2018, and the Swiss DPA and any successors or amendments, to such laws) of any country, region, or territory requiring a mechanism for valid transfer of Personal Data to a third country (Such countries, regions, or territories, “Limited Data Countries” or “Limited Data Country” and such data “Limited Transfer Data”), the Parties shall not receive or transfer Limited Transfer Data (and shall not authorize any third party to receive or transfer Limited Transfer Data on its behalf) from such Limited Transfer Countries unless it takes such measures to provide adequate protection for the Limited Transfer Data consistent with the requirements of Chapter V of the GDPR and such other Data Protection Laws of such Limited Transfer Countries. Such measures may include:
      1. receiving or transferring the Limited Transfer data to a country that has been deemed adequate by the European Commission pursuant to Article 45 of the GDPR or such other relevant data authority or Applicable Data Protection Laws of such Limited Transfer Countries;
      2. Standard Contractual Clauses (which the Parties hereby enter into through the attached Appendix 2 to Exhibit C) and any successors or amendments, to such model clauses or such other applicable contractual terms adopted and approved under Data Protection Laws of Limited Transfer Countries;
      3. receiving or transferring EEA Data in compliance with Binding Corporate Rules in accordance with EU requirements; or
      4. any other data transfer mechanisms approved under applicable Data Protection Laws.
    • The Parties agree the terms attached as Exhibit A shall apply to the processing of personal data, and to the extent that any substitute or additional appropriate safeguards under any applicable Data Protection Laws of Limited Transfer Countries are required to transfer data from a Limited Transfer Country, as applicable, to any third country, the Parties agree to immediately implement the same and as soon as practical document such requirements for implementation in an addendum to this Exhibit C governing the Parties' processing of Limited Transfer Data.

     

    1. Indemnity and Limitation of Liability
    • Under no circumstances will BetterUp be liable for any liabilities, claims, or amounts to the extent that such liabilities, claims, or amounts resulted from the acts or omissions of Company. Company will indemnify, defend, and hold harmless BetterUp for all liabilities and amounts, resulting from Company’s breach of this DPA (such as, by way of example, a breach of Section 2), Data Protection Laws, and its acts or omissions causing BetterUp to breach the same, including without limitation: (a) costs (including legal costs), claims, demands, actions, settlements, charges, procedures, expenses, losses, liabilities and damages (e.g. relating to material or non-material damage, or incurred as a result of defending or settling a claim by a third party); and (b) to the extent permitted by any applicable law: (i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a government or regulatory authority; (ii) compensation to a Data Subject ordered by a regulatory authority; and (iii) the reasonable costs of compliance with investigations by a regulatory authority.
    • BetterUp shall indemnify, defend and hold Company harmless from all claims, proceedings, liabilities, losses, damages, awards, costs (including reasonably incurred legal costs) and expenses, resulting from any claims made by third parties against Company that result from BetterUp`s non-compliance with the provisions of this Agreement or Data Protection Laws.
    • BetterUp will compensate Customer for all direct damages caused to Customer by BetterUp’s non-compliance with the provisions of this Agreement or GDPR or other applicable privacy law. For the constellation described in this sub-section c, BetterUp’s liability is limited to the contractually agreed liability caps, in cases where a corresponding clause is contractually agreed, for example within the Service Agreement.
    1. Term and Termination
    • Term of DPA.This DPA will remain in effect until, and automatically expire upon, deletion of all Personal Data as described in this DPA.
    • Deletion of Customer Data. Where BetterUp is a Data Processor, BetterUp shall delete or return Personal Data to Company at any time upon request and shall delete all existing copies thereof, except to the extent that BetterUp is required under Data Protection Laws to keep a copy of the Personal Data.

    IN WITNESS WHEREOF, the authorized representatives of the Parties hereto have executed and delivered this DPA.

    Company

     

    BetterUp, Inc.

    Signature:

     

     

    Signature:

     

    Printed:

     

     

    Printed:

     

    Title:

     

     

    Title:

     

    Date:

     

     

    Date:

     

     

     

            APPENDIX 1

                                                                                 Security Measures

    To mitigate the risk to information processing resources, unauthorized disclosure or erasure of information and interruption of support for business processes which may result from unauthorized access, security controls implemented by BetterUp as a processor are included in the following sections:

    Section 1 – Access Controls

    Section 2 – Personnel Security Controls

    Section 3 – Physical and Environmental Control

    Section 4 – Network Connectivity

    Section5 –  Media Protection

    Section 6 – Audit and Compliance

    Section 7 – Responsibilities

    1            Access Controls

    This Section applies to the datacenter and datacenter servers on which Personal Data is Processed.

    Access to systems and network devices is based upon a documented, approved request process. Remote access to all platform servers and management systems requires two-factor authentication. A periodic verification is performed to determine that the owner of a user ID is still employed and assigned to the appropriate role. Access is further restricted by system permissions using a least privilege methodology and all permissions require documented business need. Exceptions identified during the verification process are remediated. Business need revalidation is performed on an annual basis to determine that access is commensurate with the user’s job function. Exceptions identified during the revalidation process are remediated. User access is revoked upon termination of employment.

    2                Personnel Security Controls

    Personnel security is controlled by policies and procedures. All new staff are subject to background checks and screenings. Separation of duties is enforced to ensure that sensitive actions cannot be performed without additional scrutiny. Access to all systems is revoked upon termination of employment.

    All employees sign a confidentiality agreement at the start of their employment. New hires are required to take a security training course.

    Passwords are implemented according to the following requirements. Identity verification passwords must:

    • Be at least eight characters in length
    • Meet other stringent requirements set by BetterUp.
    3                Physical and Environmental Controls

     

    This Section applies to the datacenter and datacenter servers on which Personal Data is Processed.

    General access to the buildings is controlled by the use of a card access system. Closed circuit television (CCTV) cameras are installed throughout the sites and monitored by security personnel. Selected access doors are alarmed and security personnel monitor these alarms.

    Access to controlled areas is restricted through the use of card access and additional biometric verification. All individuals without authorized access to the controlled areas must sign in and be escorted by an individual with approved controlled area access. All controlled area emergency exits have audible alarms and security personnel monitor these alarms. Periodic verification that the alarms are functioning is performed, documented, and retained. Access rights to controlled areas are fully revalidated on an annual basis.

    Access to controlled areas is revoked upon termination of employment.

    Facilities are protected against environmental factors such as fire, water, and heat through fire alarms, fire extinguishers, smoke alarms, and fire suppression and extinguishing systems. Facilities are protected against power disruptions or failures through Uninterruptible Power Supply (UPS) systems and backup generators, which are maintained and tested on a regular basis.

    4                Network Connectivity

     

    Redundant network connections are used via various providers to minimize the risk of outages for production systems.

    5                Media Protection

     

    This Section applies to the data center and data center servers on which Personal Data is Processed.

    In addition to the physical controls in place, drives are wiped pursuant to United States Department of Defense protocol when they reach end-of-life or are released by the customer. Drives are destroyed by crushing when they cannot be reused or based upon customer request.

    6                Audit and Compliance

     

    This Section applies to the data center in which Personal Data is stored.

    Various external certifications and audits are maintained to ensure security. SOC 2 and PCI assessments and reports are completed by an independent external auditor on an annual basis. These reports can be provided to customer security personnel and auditors as assurance of the security measures in place. Internal policies and procedures are not provided to customers or their auditors.

    7                Responsibilities

     

    BetterUp will comply with all laws and regulations applicable to its operation as a Software as a Service provider. BetterUp shall not be responsible for compliance with any legal, regulatory, or industry requirements of the Company.

     

     

     

     

     

     

     

    APPENDIX 2

    THE DATA TRANSFER FRAMEWORK

     

    The Parties agree that Limited Transfer Data transferred between and among the Parties shall be subject to the model clauses attached as Schedule 1 and 2 as applicable.

    • The Parties acknowledge the importance of the protection of Personal Data and the legal restrictions on international transfers of Personal Data.
    • Accordingly, the Parties agree to abide by the GDPR, UK DPA 2018, and Swiss DPA, and other applicable Data Protection Laws, as applicable, and enter into this Agreement to ensure that personal data transfers outside any Limited Transfer Country (including the EU, UK, and Switzerland) to any third country other than a country, region, or territory that the relevant data authority has determined to offer an adequate level of data protection are lawful and subject to adequate data protections.

    DEFINITIONS

    The terms “data controller” or “controller,” “data exporter,” “data importer,” “data processor” and “personal data” shall have the meaning under the GDPR, UK DPA 2018, Swiss DPA, or other Limited Transfer Country laws as applicable.

    1. APPLICABLE CONTRACTUAL CLAUSES

    Controller to Controller Clauses: For the purposes of this Agreement, with respect to Usage Data, either Parties may act as independent controllers and either act as data exporter or data importer and Module 1 shall apply.

    Controller to Processor Clauses: With respect to Processing of Eligibility Data, Company is a data exporter and Controller and BetterUp is a data importer and Processor. Under such transfers, Module 2 shall apply.

     

    1. SUPPLEMENTARY MEASURES TO CONTRACTUAL CLAUSES

    For the purposes of this Agreement, the Parties agree that to the extent that any additional appropriate safeguards under the GDPR, UK DPA 2018, and Swiss DPA, and other laws are required by an applicable supervisory authority to transfer data from the EU, UK, Switzerland, or other Limited Transfer Countries recognizing these model clauses, to any Third Country, or to the extent that the standard contractual clauses are substituted or replaced under any such law, the Parties agree to either immediately implement the same or agree to use another acceptable method for transfer of such data and amend this Exhibit as soon as practical.

     

    CONTROLLER- CONTROLLER STANDARD CONTRACTUAL CLAUSES

    Commission Decision (2021)914

    MODULE ONE

    Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)

     

    Module Two

    Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to processor transfers)

     

    SECTION I

    Clause 1

    Purpose and scope

    (a)

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

     

    (b)

    The Parties:

    (i)

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

     

    (ii)

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

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

     

    (c)

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

     

    (d)

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

     

    Clause 2

    Effect and invariability of the Clauses

    (a)

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

     

    (b)

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

     

    Clause 3

    Third-party beneficiaries

    (a)

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

    (i)

    Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

     

    (ii)

    Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

     

    (iii)

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

     

    (iv)

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

     

    (v)

    Clause 13;

     

    (vi)

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

     

    (vii)

    Clause 16(e);

     

    (viii)

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

     

    (b)

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

     

    Clause 4

    Interpretation

    (a)

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

     

    (b)

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

     

    (c)

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

     

    Clause 5

    Hierarchy

    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 organizational measures, to satisfy its obligations under these Clauses.

     

    MODULE ONE: Transfer controller to controller

    8.1   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. It may only process the personal data for another purpose:

    (i)

    where it has obtained the data subject’s prior consent;

     

    (ii)

    where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

     

    (iii)

    where necessary in order to protect the vital interests of the data subject or of another natural person.

     

    8.2   Transparency

    (a)

    In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:

    (i)

    of its identity and contact details;

     

    (ii)

    of the categories of personal data processed;

     

    (iii)

    of the right to obtain a copy of these Clauses;

     

    (iv)

    where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.

     

    (b)

    Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.

     

    (c)

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

     

    (d)

    Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

     

    8.3   Accuracy and data minimisation

    (a)

    Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.

     

    (b)

    If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.

     

    (c)

    The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.

     

    8.4   Storage limitation

    The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation (2) of the data and all back-ups at the end of the retention period.

    8.5   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 personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.

     

    (b)

    The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

     

    (c)

    The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

     

    (d)

    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 personal data breach, including measures to mitigate its possible adverse effects.

     

    (e)

    In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.

     

    (f)

    In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.

     

    (g)

    The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.

     

    8.6   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 or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.

    8.7   Onward transfers

    The data importer shall not disclose the personal data to a third party located outside the European Union (3) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

    (i)

    it is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

     

    (ii)

    the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;

     

    (iii)

    the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;

     

    (iv)

    it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;

     

    (v)

    it is necessary in order to protect the vital interests of the data subject or of another natural person; or

     

    (vi)

    where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.

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

    8.8   Processing under the authority of the data importer

    The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.

    8.9   Documentation and compliance

    (a)

    Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.

     

    (b)

    The data importer shall make such documentation available to the competent supervisory authority on request.

     

    MODULE TWO: Transfer controller to processor

    8.1   Instructions

    (a)

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

     

    (b)

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

    8.2   Purpose limitation

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

    8.3   Transparency

    On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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 (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

    (i)

    the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

     

    (ii)

    the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

     

    (iii)

    the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

     

    (iv)

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

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

    8.9   Documentation and compliance

    (a)

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

     

    (b)

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

     

    (c)

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

     

    (d)

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

     

    (e)

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

    Clause 9

    Use of sub-processors

    MODULE TWO: Transfer controller to processor

    (a)

    OPTION 1: SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.

    OPTION 2: 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 [Specify time period] 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. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

     

    (c)

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

     

    (d)

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

     

    (e)

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

    Clause 10

    Data subject rights

     

    MODULE ONE: Transfer controller to controller

    (a)

    The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. (10) The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

     

    (b)

    In particular, upon request by the data subject the data importer shall, free of charge:

    (i)

    provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);

     

    (ii)

    rectify inaccurate or incomplete data concerning the data subject;

     

    (iii)

    erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.

     

    (c)

    Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.

     

    (d)

    The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter ‘automated decision’), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:

    (i)

    inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and

     

    (ii)

    implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.

     

    (e)

    Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.

     

    (f)

    The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.

     

    (g)

    If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.

    MODULE TWO: Transfer controller to processor

    (a)

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

     

    (b)

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

     

    (c)

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

    Clause 11

    Redress

    (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 (11) 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.]

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

    (b)

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

     

    (c)

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

    (i)

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

     

    (ii)

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

     

    (d)

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

     

    (e)

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

     

    (f)

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

    Clause 12

    Liability

    MODULE ONE: Transfer controller to controller

    (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)

    Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.

     

    (c)

    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.

     

    (d)

    The Parties agree that if one Party is held liable under paragraph (c), 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.

     

    (e)

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

    MODULE TWO: Transfer controller to processor

    (a)

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

     

    (b)

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

     

    (c)

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

     

    (d)

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

     

    (e)

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

     

    (f)

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

     

    (g)

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

    Clause 13

    Supervision

     

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

    (a)

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

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

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

     

    (b)

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

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

    Clause 14

    Local laws and practices affecting compliance with the Clauses

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

    (a)

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

     

    (b)

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

    (i)

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

     

    (ii)

    the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);

     

    (iii)

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

     

    (c)

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

     

    (d)

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

     

    (e)

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

     

    (f)

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

    Clause 15

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

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

    15.1   Notification

    (a)

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

    (i)

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

     

    (ii)

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

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

     

    (b)

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

     

    (c)

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

     

    (d)

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

     

    (e)

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

    15.2   Review of legality and data minimisation

    (a)

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

     

    (b)

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

     

    (c)

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

    SECTION IV – FINAL PROVISIONS

    Clause 16

    Non-compliance with the Clauses and termination

    (a)

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

     

    (b)

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

     

    (c)

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

    (i)

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

     

    (ii)

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

     

    (iii)

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

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

     

    (d)

    [For Modules One, Two and Three: 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.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

     

    (e)

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

    Clause 17

    Governing law

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

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

    [OPTION 2 (for Module Two): These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

    Clause 18

    Choice of forum and jurisdiction

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

    (a)

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

     

    (b)

    The Parties agree that those shall be the courts of _____ (specify Member State).

     

    (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.

     

    (1)  Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

    (2)  This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.

    (3)  The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

    (4)  The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

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

    (6)  The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purposes of these Clauses.

    (7)  This includes whether the transfer and further processing 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 or offences.

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

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

    (10)  That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.

    (11)  The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.

    (12)  As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

     

    ANNEX I

    1. LIST OF PARTIES

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

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

    1.

    Name: …

    Address: …

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

    Activities relevant to the data transferred under these Clauses: …

    Signature and date: …

    Role (controller/processor): …

     

     

    2.

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

     

    1.

    Name: BetterUp, Inc.

    Address: 1200 Folsom Street, San Francisco, CA 94103

    Contact person’s name, position and contact details: Meredith Speece, Head of Legal and Privacy, compliance@betterup.co

    Activities relevant to the data transferred under these Clauses: …

    Signature and date: …

    Role (controller/processor): …

     

     

    2.

    1. DESCRIPTION OF TRANSFER

    MODULE ONE: Transfer controller to controller

    Categories of data subjects whose personal data is transferred

    Company Employees who are registered with the BetterUp Services

    Categories of personal data transferred

                Name, business contact information, and frequency of interaction with the BetterUp 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.

                None

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

    Continuous basis

    Nature of the processing

                Provision of Services pursuant to the Agreement

    Purpose(s) of the data transfer and further processing

    Providing Company with analytics concerning the use of BetterUp Services by Company’s employees

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

                Duration of the Agreement, subject to BetterUp’s data retention policies

     

    MODULE TWO: Transfer controller to processor

    Categories of data subjects whose personal data is transferred

    Company Employees who will use the BetterUp Services

    Categories of personal data transferred

    Business Contact Information: First Name, Last Name, Role/Title, Location, Business Email, and business phone number

    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.

                See Agreement

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

    As needed to register Company Employees in the BetterUp Services

    Nature of the processing

    Validating the eligibility of the Data Subjects to use the Services, charging for the Services and providing support and maintenance for the Services, pursuant to the Agreement.

    Purpose(s) of the data transfer and further processing

                Provision of Services pursuant to the Agreement

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

                Duration of the Agreement, subject to BetterUp’s data retention policies

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

    1. COMPETENT SUPERVISORY AUTHORITY

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

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

     

     

    ANNEX II

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

    MODULE ONE: Transfer controller to controller

    MODULE TWO: Transfer controller to processor

    See Appendix 1 for details

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

     

    ANNEX III

    LIST OF SUB-PROCESSORS

    MODULE TWO: Transfer controller to processor

    MODULE THREE: Transfer processor to processor

    The controller has authorized the use of the following sub-processors:

     

    Sub-Processor

    Address

    Purpose of Processing

    Country of Processing

    Amazon Web Services

    410 Terry Ave.

    Seattle, WA

    Infrastructure

    United States

    TokBox

    501 2nd St #310,

    San Francisco, CA 94107

    Video Calls

    United States

    SendGrid, Inc.

    889 Winslow St.

    Redwood City, CA

    Transactional and Marketing Email

    United States

    Twilio

    399 W. El Camino Real, Mountain View, CA

    SMS Notification

    United States

    PubNub

    725 Folsom Street

    San Francisco, CA 94107

     

    Push Notification on Android and iOS

    United States

    Heroku

    50 Fremont St.

    San Francisco, CA 94105

     

    Infrastructure

    United States

    Pole To Win America, Inc.

    125 E Sir Francis Drake Blvd, Suite 401, Larkspur, CA 94939

     

    Customer Support/Experience

    India, Malaysia, Romania

     

    EXHIBIT A

     

    ECJ Addendum

     

    In light of the decision of the European Court of Justice dated July 16, 2020, case C-311/18 ("ECJ Judgment"), the parties agree to the terms of this Addendum which will supplement the terms of the Standard Contractual Clauses and agrees as follows:

    1. General Provisions
    • The provisions of this Addendum will be interpreted in accordance with the relevant statements in the ECJ Judgment and corresponding guidance issued by the European Data Protection Board and competent data protection authorities.
    • In case of contradictions between this Addendum and the terms of the Standard Contractual Clauses, the terms of the Standard Contractual Clauses will prevail. In case of contradictions between this Addendum and the terms of any other agreements between the Parties, including the DPA and other data protection related terms, the terms of this Addendum will prevail.
    • The Data Exporter will have the right to request changes to this Addendum as necessary to comply with mandatory provisions of applicable Data Privacy Laws. If disputed, the necessity of such change can be demonstrated by the provision of a respective order (which may be informal) by the supervisory authority, whereby the Data Exporter is not obliged to lodge an appeal against such an order. If, within thirty (30) days after the Data Exporter has notified the Data Importer in writing of the mandatory changes, the Parties are unable to agree on the mandatory changes necessary to comply with the mandatory legal requirements, the Data Exporter will be entitled to terminate the DPA (including this Addendum) and the underlying services by giving thirty (30) days' written notice, without prejudice to its right to suspend the transfer of Personal Data to the Data Importer with immediate effect under the provisions of the Standard Contractual Clauses.
    • In the event the Standard Contractual Clauses are modified, revised or superseded by the European Commission, then such modified, revised or replaced provisions will automatically, and without any action required by either party, replace and supersede the Standard Contractual Clauses incorporated into the DPA by reference.
    • The Parties undertake to closely cooperate in good faith to identify and, as the case may be, agree on additional measures (e.g., the improvement of existing or the implementation of additional technical and organizational security measures) as may be required or appropriate in connection with the processing of Personal Data by the Data Importer under the DPA considering in particular the nature of the Personal Data and the criteria stipulated in the ECJ Judgment.
    1. Additional Obligations of the Data Importer
    • To the extent reasonable in the given circumstances, Data Importer will take legal actions and remedies reasonably available to it under applicable law to challenge legally binding orders from an authority (“Order”) that conflict with the Data Importer's obligations under the Standard Contractual Clauses. In particular, the Data Importer may only disclose Personal Data to an authority on the basis of an Order which exposes the Data Importer to sanctions or significant adverse consequences in case of non-compliance, and if:
    • such disclosure is lawful under EU or applicable Member State law if it were made by a comparable authority in the EU (taking into account the specificity of the Order), or
    • there are no further legal measures and remedies against the Order reasonably available. For clarity, a legal measure or remedy will be deemed not reasonably available if the Order serves to defend against an imminent illegal threat to other important legal interests (e.g. life, health or property of others).
    • Data Importer will inform Data Exporter about any legally binding request for disclosure of the Personal Data by an authority unless such information proves impossible for the Data Importer or such information is otherwise legally prohibited. This Section will include any legally binding requests for disclosure of Personal Data levied against sub-processors or which Data Exporter has been provided notice.
    • Upon request, the Data Importer will inform the Data Exporter generally about the access requests received from authorities concerning Personal Data processed under the DPA. If permitted by applicable law, Data Exporter will provide, at a minimum, information regarding the number of requests, the nature of requested data, the legal basis for such requests and the requesting bodies.
    • The Data Importer undertakes to regularly review, assess and continuously monitor the scope of the access to Personal Data by law enforcement and other authorities in the country where the Data Importer is located, as well as the safeguards and recourses in place to protect data subjects, and to immediately inform the Data Exporter in the case of a change in applicable law that would materially impact such access by authorities or recourses available to data subjects.
    • Upon request, the Data Importer will provide the Data Exporter with all information, documentation and reasonable assistance as required enabling the Data Exporter to comply with the requirements for the transfer of Personal Data to the Data Importer pursuant to Art. 44 et. seq. GDPR (including any official guidance by competent regulators or the European Data Protection Board and relevant court decisions).
    1. Additional Data Security Terms
    • Data Importer shall implement and maintain at all times appropriate and legally required administrative, physical and technical measures (“Security Measures”) that prevent any impermissible collection, use or disclosure of, or access to Personal Data. Such Security Measures include: (a) maintaining industry-standard perimeter protection for Data Importer’s network and devices connected thereto (“Data Importer’s System”); (b) applying, as soon as practicable, patches or other controls to Data Importer’s System that effectively address actual or potential code-based security vulnerabilities; (c) employing commercially reasonable efforts to ensure that Data Importer’s System remains free of security vulnerabilities, viruses, malware, and other harmful code; (d) employing commercially reasonable efforts to practice safe coding standard and practices which address common application security vulnerabilities; (e) providing appropriate education and training to Data Importer employees and workers regarding security and ensuring that those individuals are bound by confidentiality obligations; (f) accessing or transferring Personal Data only in a secure and confidential manner; and (g) limiting Data Importer employee/agent/subcontractor access to Data Importer’s network, systems, devices and facilities to those with a need for such access with sufficient competence in information security issues, and whose access privileges shall be revoked promptly upon their termination.
    • Data Importer shall encrypt Personal Data when appropriate and in any case: (i) when it is transferred, communicated, or otherwise transmitted electronically outside the Data Importer’s system and/or the EU or European Economic Area (EEA); (ii) in connection with remote access connectivity involving such Personal Data; (iii) to the extent any portable devices are used to process Personal Data; and (iv) in any circumstances required under applicable Data Privacy Laws.
    1. Third-party Beneficiary Clause

    Data subjects can enforce against the Data Importer as third-party beneficiary this Section, as well as sections 3.1, 3.2, and 3.3 under the conditions stipulated in clause 3 (2) of the Standard Contractual Clauses.