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.
“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means the standard clauses for the transfer of Personal Data to Third Countries as updated, amended, replaced or superseded from time to time by the European Commission, the approved version of which in force at present is that set out in the European Commission's Decision 2010/87/EU of 5 February 2010, available at: http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087.
“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.
- Processing of Data
- 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 Schedule 1 of Appendix 1 to this DPA.
- 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:
- 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.
- 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.
- Responsibilities of the Parties.
(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.
(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:
- 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.
- 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.
- 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.
- 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.
- 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.
- cooperate and reasonably assist Company with its compliance obligations required under Data Protection Laws including:
- conducting a data protection impact assessment;
- 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:
- adhere to detailed security requirements described in Appendix 1;
- 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
- 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.
- 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:
- 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;
- 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;
- receiving or transferring EEA Data in compliance with Binding Corporate Rules in accordance with EU requirements; or
- 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.
- 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.
- 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.
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.
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.
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.
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.
- 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 Schedule 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, Schedule 2 shall apply.
- 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.
Schedule 1 to Appendix 2
CONTROLLER- CONTROLLER STANDARD CONTRACTUAL CLAUSES
Commission Decision C (2004)5721
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
1200 Folsom St, San Francisco, CA 94103
hereinafter “data exporter”
1200 Folsom St, San Francisco, CA 94103
hereinafter “data importer”
each a “party”; together “the parties”.
For the purposes of the clauses:
- “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
- “the data exporter” shall mean the controller who transfers the personal data;
- “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
- “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
- Obligations of the data exporter
The data exporter warrants and undertakes that:
- The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
- It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
- It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
- It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
- It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
- Obligations of the data importer
The data importer warrants and undertakes that:
- It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
- It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
- It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
- It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
- It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
- At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
- Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
- It will process the personal data, at its option, in accordance with:
- the data protection laws of the country in which the data exporter is established, or
- the relevant provisions  of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data , or
- the data processing principles set forth in Annex A.
Data importer to indicate which option it selects: data processing principles set forth in Annex A.
Initials of data importer: ;
- It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
- the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
- the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
- data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
- with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
- Liability and third party rights
- Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
- The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
- Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
- Resolution of disputes with data subjects or the authority
- In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
- The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
- Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
- In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
- In the event that:
- the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
- compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
- the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
- a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
- a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
- Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
- The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
- Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
- Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
FOR DATA IMPORTER FOR DATA EXPORTER
BetterUp Inc., [COMPANY NAME]
1200 Folsom St, San Francisco, CA 94103 [COMPANY ADDRESS]
DATA PROCESSING PRINCIPLES
- Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
- Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
- Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
- Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
- Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
- Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
- Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
- Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
- a) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
- b) where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFER
As described in the Agreement
The personal data transferred concern the following categories of data subjects:
Company’s employees who may be interested in the Services.
Purposes of the transfer(s)
The transfer is made for the following purposes:
… Provision of the Services under the Agreement. ………………………………………………………………………………………………………………………………… ……………………………………………………… ……………………………………………………
Categories of data
The personal data transferred concern the following categories of data:
Names, email address, place of employment, role/title, phone number.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
…………………… See Agreement and Statement of Work for Details ………………………………………………………………………………………………………………………………………………………………………………… ……………………
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
…………………………………………………………………………………………………………………………………… See Statement of Work for Details ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
Data protection registration information of data exporter (where applicable)
Available upon request. ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
Additional useful information (storage limits and other relevant information)
Contact points for data protection enquiries
Data importer Data exporter
Schedule 2 to Appendix 1
Standard Contractual Clauses (Controller to Processor)
For the purposes of the Clauses:
(a) personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in the GDPR, DPA 2019, or the Swiss DPA, as relevant;
(b) the data exporter means the controller who transfers the personal data;
(c) the data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;
(e) the applicable data protection law means the Laws protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
- DETAILS OF THE TRANSFER
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
- THIRD-PARTY BENEFICIARY CLAUSE
3.1 The data subject can enforce against the data exporter this clause 3, clause 4(b) to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), clause 6.1 and clause 6.2, clause 7, clause 8.2 and clause 9 to clause 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this clause 3.2, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2 and clause 9 to clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the sub-processor this clause 3.3, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2, and clause 9 to clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3.4 The Parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
- OBLIGATIONS OF THE DATA EXPORTER
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix B to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b) and clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix B and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
(j) that it will ensure compliance with clause 4(a) to clause 4(i).
- OBLIGATIONS OF THE DATA IMPORTER
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the Laws applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this Laws which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix B before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix B which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with clause 11; and
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
6.1 The Parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3 or in clause 11 by any Party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- MEDIATION AND JURISDICTION
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The Parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
- COOPERATION WITH SUPERVISORY AUTHORITIES
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The Parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of Laws applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b).
- GOVERNING LAW
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
- VARIATION OF THE CONTRACT
The Parties undertake not to vary or modify the Clauses. This does not preclude the Parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
- OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA PROCESSING SERVICES
12.1 The Parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless Laws imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
FOR DATA EXPORTER FOR DATA IMPORTER
Position: … Position: …
Address: … Address: …
This Annex forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clause 4(c) and Clause 5(c) (or document/Laws attached):
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document attached):
Data Importer maintains and enforces various policies, standards and processes designed to secure personal data to which Data Importer employees are provided access, and updates such policies, standards, and processes from time to time consistent with industry standards. Following is a description of some of the core technical and organisational security measures implemented by Data Importer as of the date of signature: See Appendix 1 to Exhibit A.
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:
- 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.
- 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).
- 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.
- 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.
 “Relevant provisions” means those provisions of any authorisation or decision except for the enforcement provisions of any authorisation or decision (which shall be governed by these clauses).
 However, the provisions of Annex A.5 concerning rights of access, rectification, deletion and objection must be applied when this option is chosen and take precedence over any comparable provisions of the Commission Decision selected.