This Data Processing Addendum (“DPA”), forms part of, and is subject to, the Flywheel Segmentation Platform Terms of Services between Provider and Client that reference this DPA (the “Agreement”). By entering into the Agreement, the parties enter into this DPA on behalf of themselves and, to the extent required under applicable Data Protection Laws, in the name and on behalf of their affiliates, and this DPA shall be effective on the effective date of the Agreement (“Effective Date”).
All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
“Client Data” has the meaning set forth in the Agreement.
“Client Personal Data” means any Client Data that is Personal Data.
“Data Protection Laws” means all data protection and privacy laws applicable to the respective party in its role in the Processing of Personal Data under the Agreement, including, where applicable, in the EU, the GDPR and its implementing regulations, the UK GDPR and in the U.S., the California Consumer Privacy Act of 2018 (“CCPA”), the California Privacy Rights Act of 2020, the Virginia Consumer Data Protection Act of 2021, and the Colorado Privacy Act of 2021.
“Data Controller” means an entity that determines the purposes and means of the Processing of Personal Data.
“Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.
“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data (“Directive”) and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council 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) (“GDPR”), and repealing Directive 95/46/EC.
“EEA” means, for the purposes of this DPA, the European Economic Area and/or its member states, United Kingdom and/or Switzerland.
“Model Clauses” means the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU and as approved by the European Commission in the form set out in Annex A.
“Personal Data” means information that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers); or (iii) relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with an individual, including inferences about such individual. In the case of subclauses (i) through (iii), this information includes, without limitation, all Sensitive Personal Data. Client’s business contact information is not by itself deemed to be Personal Data. Further, the term “Personal Information” as defined in the CCPA shall have the same meaning as Personal Data used herein.
“Processing” has the meaning given to it in the GDPR and “process,” “processes” and “processed” will be interpreted accordingly.
“Purposes” shall mean the data Processing purposes described and defined in Section 3.4 of this DPA.
“Security Incident” means any (a) unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Client Personal Data, but does not include any Unsuccessful Security Incident.
“Services” means the Flywheel Technology provided by Provider to Client pursuant to the Agreement.
“Sensitive Personal Data” is a subset of Client Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the Processing of genetic data, biometric data for the purposes of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation. Further, the term “Sensitive Personal Information” as defined in the CCPA shall have the same meaning as Sensitive Personal Data used herein.
“Sub-processor” means any Data Processor engaged by Provider or its affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or Provider’s affiliates.
“UK GDPR” means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of Section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
“Unsuccessful Security Incident” means an unsuccessful attempt or activity that does not compromise the security of Client Personal Data, including (without limitation) pings and other broadcast attacks of firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents.
- Scope and Applicability of this DPA
- Roles of the Parties; Details of Processing
- Role of the Parties. If and to the extent that the Services provided by Provider under the Agreement require Provider to Process Personal Data, then as between Provider and Client, Provider shall process Client Personal Data only as a Data Processor acting on behalf of Client. Client is either the Data Controller of Client Personal Data, or in the case that Client is acting on behalf of a third-party Data Controller, then a Data Processor.
- Client Processing of Personal Data. Client represents and warrants that: (i) it will comply with its obligations under Data Protection Laws in respect of its Processing of Personal Data, including any obligations specific to its role as a Data Controller; (ii) it has provided all notices and obtained all consents, assignments, licenses, authorizations, permissions and/or rights necessary under Data Protection Laws for Provider to lawfully Process Personal Data as contemplated under this Agreement for the Purpose; and (iii) it shall ensure its Processing instructions are lawful, and that Provider’s Processing of Client Personal Data in accordance with such instructions will not violate or infringe upon applicable Data Protection Laws or intellectual property, publicity, privacy or other rights governing such Client Personal Data. If Client is itself a Data Processor acting on behalf of a third-party Data Controller, Client further represents and warrants to Provider that Client’s instructions and actions with respect to that Client Personal Data, including its appointment of Provider as another Data Processor, have been authorized by the relevant Data Controller.
- Provider Processing of Personal Data. Provider will process Client Personal Data only to the extent, and in such a manner, as is necessary for the Purposes and in accordance with Client’s documented lawful instructions. Provider will not, and will ensure its Sub-processors do not, combine Client’s Personal Data with any Personal Data from other sources, or which Provider or its Sub-processor collected on its own behalf, except as permitted by Data Protection Laws, and will not “sell” any Client Personal Data within the meaning of the CCPA or otherwise. The parties agree that the Agreement (including this DPA) sets out the Client’s complete and final instructions to Provider in relation to the Processing of Client Personal Data. Additional Processing outside the scope of these instructions (if any) will require prior written agreement between Client and Provider.
- Details of Data Processing
- Subject matter: The subject matter of the data Processing under this DPA is the Client Personal Data.
- Duration: As between Provider and Client, the duration of the data Processing under this DPA is determined by Client and as set forth in the Agreement.
- Purpose: The purpose of the Processing under the Agreement is the provision of Services by Provider to Client as specified in the Agreement (the “Purpose”).
- Nature of the Processing: Provider provides Services and such as other Services as described in the Agreement, which may include the Processing of Client Personal Data upon the instruction of the Client in accordance with the terms of the Agreement.
- Categories of data subjects: Client may submit Client Personal Data to the Services or may direct Provider to submit Client Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to, Personal Data relating to the following categories of data subjects:
- Prospects, customers, business partners and vendors of Client (who are natural persons);
- Employees or contact persons of Client’s prospects, customers, business partners and vendors;
- Employees, agents, advisors, independent contractors of Client (who are natural persons); and/or
- Client’s end-users authorized by Client to use the Services.
- Types of Personal Data: Client may submit Client Personal Data to the Services or may direct Provider to submit Client Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to, the following types of Personal Data:
- Identification and contact data (such as name, title, contact details, address, phone number, device identifiers, email address, Client’s username or other user identifiers, and social media handle);
- Financial information (such as purchase details, transactional details, billing details, credit or debit card meta-data, account details, eligibility details, subscription details, and payment information);
- Employment details (such as employer, job title, geographic location, and area of responsibility); and/or
- IT information (IP addresses, usage data, cookies data, and location data).
- Responsibility for Client Personal Data. Without limiting anything else herein or in the Agreement, Client acknowledges and agrees that is it solely responsible and liable for all Client Personal Data that it submits to the Services and/or directs Provider to submit to the Services, including, without limitation, any Client Personal Data which is misattributed, mislabeled, and/or miscategorized.
- Authorized Sub-processors. Client agrees that Provider may engage Sub-processors to process Client Personal Data on Client’s behalf. Provider shall (i) provide an up-to-date list of the Sub-processors it has appointed upon written request from Client; and (ii) notify Client (for which publication on Provider’s website or via email will suffice) if it adds or removes Sub-processors at least fourteen (14) days’ prior to allowing such Sub-processor to process Client Personal Data. Client may object in writing to Provider’s appointment of a new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If Provider cannot provide an alternative Sub-processor, or the parties are not otherwise able to achieve resolution as provided in the preceding sentence, Client, as its sole and exclusive remedy, may terminate the Agreement (including this DPA) but shall not be eligible for any refund and Client must immediately pay all fees payable under the Agreement. If Client has not notified Provider of its objection within the time period set forth in this Section 4.1, then Client will be deemed to have approved the use of the new Sub-processor.
- Automated Notification Mechanism. For purposes of providing notice in accordance with Section 4.1 of this DPA, Provider may implement mechanisms by which Client can receive automated notifications of new Sub-processor engagements (each, an “Automated Notification Mechanism”) at no additional cost to Client. If Provider implements an Automated Notification Mechanism, Provider will notify Client and provide detailed instructions on the use of such Automated Notification Mechanism, and Client agrees to register for and use any Automated Notification Mechanism if it is made available by Provider.
- Sub-processor Obligations. Provider will: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to Process the Client Personal Data in a manner that is substantially similar to the standards set forth in this DPA, and, to the extent applicable to the Services provided by Provider, to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Provider to breach any of its obligations under this DPA.
- Security Measures. Taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Provider shall implement and maintain appropriate technical and organizational security measures to protect Client Personal Data from Security Incidents and to preserve the security and confidentiality of the Client Personal Data Processed by Provider on behalf of Client to the extent such measures are applicable to Provider’s Processing of Client Personal Data in performance of the Services (“Security Measures”).
- Updates to Security Measures. Client is responsible for reviewing the information made available by Provider relating to data security and making an independent determination as to whether the Services meet Client’s requirements and legal obligations under Data Protection Laws. Client acknowledges that the Security Measures are subject to technical progress and development and that Provider may update or modify the Security Measures from time to time provided that such updates and modifications do not result in a material degradation of the overall security of the Services subscribed to by Client.
- Security Measures by Client. Client is responsible for using and configuring the Services in a manner that enables Client to comply with Data Protection Laws, including implementing appropriate technical and organizational measures.
- Confidentiality of Processing. Provider shall ensure that any person who is authorized by Provider to process Client Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
- No Assessment of Client Data by Provider. Client acknowledges that Provider will not assess the contents of Client Data in order to identify information subject to any specific legal requirements. Client is solely responsible for complying with incident notification laws applicable to Client and fulfilling any third-party notification obligations related to any Security Incidents.
- Client Responsibilities. Client agrees that, without prejudice to Provider’s obligations under Section 5.1 (Security Measures) and Section 8.3 (Security Incident Response):
- Client is responsible for its use of the Services, including making appropriate use of the Services to ensure a level of security and appropriate to the risk in respect of the Client Personal Data, securing its account authentication credentials, managing its data back-up strategies, and protecting the security of Client Personal Data when in transit to and from the Services and taking any appropriate steps to pseudonymize, securely encrypt, and/or backup any Client Personal Data uploaded to the Services; and
- Provider has no obligation to protect Client Personal Data that Client elects to store or transfer outside of Provider’s and its Sub-processors’ systems (for example, offline or on-premise storage).
- Security Reports and Audits
- Reports. Client acknowledges that Provider is regularly audited by independent third-party auditors and/or internal auditors against the standards specified in Provider’s information security policy. Upon request, Provider shall supply (on a confidential basis) a summary of its then-current audit report(s) and any other published materials made available by Provider, which further describe Provider’s principles, programs, and practices regarding information security and privacy (collectively, “Report”) to Client, so that Client can verify Provider’s compliance with this DPA. Notwithstanding the foregoing, Client may disclose a Report as allowed under the applicable confidentiality section of the Agreement, including where requested or required by data protection authorities having jurisdiction over Client even if not legally required (“Data Protection Authority Request”), provided, however, that Client shall give Provider prior written notice of the Data Protection Authority Request such that Provider can attempt to secure confidential treatment for the Report. If Client is not legally permitted to give Provider prior notice, Client agrees to use reasonable efforts to secure confidential treatment for the Report and further agrees to not remove or obscure any “confidential,” “proprietary,” or similar markings from the Report.
- Information requests. Provider shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Client related to its Processing of Client Personal Data, including responses to information security and audit questionnaires that are necessary to confirm Provider’s compliance with this DPA, provided that Client shall not exercise this right more than once per year, except that this right may also be exercised in the event Client is expressly requested or required to provide this information to a data protection authority, or Provider has experienced a Security Incident, or other reasonably similar basis.
- International Processing. Provider may process Client Data anywhere in the world where Provider, its affiliates or its Sub-processors maintain data Processing operations. Provider will at all times provide appropriate safeguards for the Client Personal Data wherever it is processed, in accordance with the requirements of Data Protection Laws.
- EEA Transfers. To the extent that Provider processes any Client Personal Data protected by applicable Data Protection Laws of the EEA (“EEA Data”), the parties agree that Provider makes available the transfer mechanisms listed below, for any transfers of EEA Data from the EEA to Provider located in a country which does not ensure an adequate level of protection (within the meaning of applicable Data Protection Law) and to the extent such transfers are subject to such Data Protection Laws of the EEA, Provider agrees to abide by and process EEA Data in compliance with the Model Clauses and for these purposes Provider agrees that it is a “data importer” and Client is the “data exporter” under the Model Clauses (notwithstanding that Client may be an entity located outside of the EEA).
- Return or Deletion of Data
- Deletion by Client. Provider will enable Client to delete Client Data during the Term in a manner consistent with the functionality of the Service.
- Deletion on Termination. For thirty (30) days following termination or expiration of the Agreement, Client shall have the option to retrieve any remaining Client Personal Data in accordance with the Agreement. Thereafter, Client instructs Provider to automatically delete all remaining (if any) Client Personal Data (including copies). Provider shall not be required to delete Client Personal Data to the extent (i) Provider is required by applicable law or order of a governmental or regulatory body to retain some or all of the Client Personal Data; and/or (ii), Client Personal Data has been archived on back-up systems, which Client Personal Data Provider shall securely isolate and protect from any further Processing, except to the extent required by applicable law.
- Security Incident Response. Upon confirming a Security Incident, Provider shall: (i) notify Client without undue delay, and in any event such notification shall, where feasible, occur no later than seventy two (72) hours from Provider confirming the Security Incident; (ii) provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Client; and (iii) Provider shall promptly take reasonable steps to contain, investigate, and mitigate any Security Incident. Provider’s notification of or response to a Security Incident under this Section 8.3 (Security Incident Response) will not be construed as an acknowledgment by Provider of any fault or liability with respect to the Security Incident.
- Cooperation. If a law enforcement agency sends Provider a demand for Client Personal Data (e.g., a subpoena or court order), Provider will attempt to redirect the law enforcement agency to request that data directly from Client. As part of this effort, Provider may provide Client’s contact information to the law enforcement agency. If compelled to disclose Client Personal Data to a law enforcement agency, then Provider will give Client reasonable notice of the demand to allow Client to seek a protective order or other appropriate remedy to the extent Provider is legally permitted to do so.
- Data Subject Access Requests. Taking into account the nature of the Processing, Provider shall (at Client’s request and expense) provide reasonable cooperation to enable Client to respond to any requests from applicable data protection authorities or a data subject to exercise its rights (to the extent available to them under Data Protection Laws) of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, their right not to be subject to automated individual decision making, to opt-out of the sale of Personal Data, or the right not to be discriminated against, in each case solely to the extent relating to the Processing of Client Personal Data through the Services under the Agreement. For the avoidance of doubt, Client remains responsible for any handling such requests in the appropriate manner on systems it controls, manages or owns, such as Client’s data warehouse hosted on a major cloud provider. In the event that any request is made directly to Provider where such request identifies Client, Provider shall not respond to such communication directly without Client’s prior authorization, unless legally compelled to do so, and instead, after being notified by Provider, Client shall respond. If Provider is required to respond to such a request, Provider will promptly notify Client and provide it with a copy of the request unless legally prohibited from doing so.
- Records. Client acknowledges that Provider is required under the GDPR or the UK GDPR, as applicable to: (a) collect and maintain records of certain information, including the name and contact details of each Data Processor and/or Data Controller on behalf of which Provider is acting and, where applicable, of such Data Processor’s or Data Controller’s local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR or UK GDPR applies to the Processing of Client Personal Data, Client will, where requested, provide such information to Provider via the Services or other means provided by Provider, and will ensure that all information provided is kept accurate and up-to-date.
- DIPA. To the extent Provider is required under EU Data Protection Law, Provider shall (at Client’s request and expense) provide reasonably requested information regarding the Services to enable the Client to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
- Relationship with the Agreement
- The parties agree that this DPA shall replace and supersede any existing data processing addendum, attachment or exhibit (including the Model Clauses (as applicable)) the parties may have previously entered into in connection with the Services.
- Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict in connection with the Processing of Client Personal Data. Notwithstanding the foregoing, and solely to the extent applicable to any patient, medical or other protected health information regulated by HIPAA or any similar U.S. federal or state laws, rules or regulations (“PHI”), if there is any conflict between this DPA and a Business Associates Agreement between Client and Provider (“BAA”), then the BAA shall prevail to extent the conflict relates to such PHI.
- Notwithstanding anything to the contrary in the Agreement or this DPA, the liability of each party and each party’s affiliates under this DPA shall be subject to the limitations on liability set out in the Agreement. Without limiting either of the parties’ obligations under the Agreement, Client agrees that any regulatory penalties incurred by Provider in relation to the Client Personal Data that arise as a result of, or in connection with, Client’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Provider’s liability under the Agreement as if it were liability to the Client under the Agreement.
- Any claims against Provider or its affiliates under this DPA shall only be brought by the Client entity that is a party to the Agreement against the Provider entity that is a party to the Agreement. In no event shall this DPA or any party restrict or limit the rights of any data subject or of any competent supervisory authority.
- This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
Annex A - Standard Contractual Clauses
Module Two: Transfer Controller to Processor (C2P)
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Appendix I (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 Appendix I (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 Appendix I.
(d) The Appendices to these Clauses forms an integral part of these Clauses.
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.
(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 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(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.
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.
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 Appendix I.
Clause 7 – Optional
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
(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 Appendix I, unless on further instructions from the data exporter.
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 Appendix 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.
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 Appendix I. 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 Appendix 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 Appendix II.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten (10) business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a subprocessor 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 subprocessor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Appendix 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.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii)refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(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.
(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 Appendix I, 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 Appendix I, 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 Appendix I, 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
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii)the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
(a)The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c)Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d)The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e)Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a)The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b)The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c)The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
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 of such noncompliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
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 these Clauses shall be governed in accordance with the 'Contracting Entity; Applicable Law; Notice’ section of the Jurisdiction Specific Terms or if such section does not specify an EU Member State, by the law of the Republic of Ireland (without reference to conflicts of law principles).
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the jurisdiction specified in Clause 17.
(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.
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed by the parties.
Data exporter: The data exporter is the entity identified as the “Client” in the DPA in place between data exporter and data importer and to which these Clauses are appended.
Data importer: The data importer is the US headquartered company, Flywheel Technologies Inc., doing business as Flywheel Software (“Provider”). Provider provides software solutions which process Client Personal Data upon the instruction of the Client in accordance with the terms of the Agreement.
Description of Data Processing: Please see Section 3.4 (Details of Processing) of the DPA for a description of the data subjects, categories of data, special categories of data, duration and retention period, and processing operations.
Competent Supervisory Authority: For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as competent supervisory authority is either (i) where Client is established in an EU Member State, the supervisory authority responsible for ensuring Client’s compliance with the GDPR; (ii) where Client is not established in an EU Member State but falls within the extra-territorial scope of the GDPR and has appointed a representative, the supervisory authority of the EU Member State in which Client’s representative is established; or (iii) where Client is not established in an EU Member State but falls within the extra-territorial scope of the GDPR without having to appoint a representative, the supervisory authority of the EU Member State in which the data subjects are predominantly located. In relation to Client Personal Data that is subject to the UK GDPR or Swiss DPA, the competent supervisory authority is the UK Information Commissioner or the Swiss Federal Data Protection and Information Commissioner (as applicable).
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational measures (including the certifications held by the data importer) as well as the scope and the extent of the assistance required to respond to data subjects’ requests, are described in the DPA and Security Measures. The technical and organisational measures that the data importer will impose on sub-processors are described in the DPA.
UK and Swiss Addendum to the Standard Contractual Clauses
This Addendum amends the Standard Contractual Clauses to the extent necessary so they operate for transfers made by the data exporter to the data importer, to the extent that the UK GDPR or Swiss DPA apply to the data exporter’s processing when making that transfer.
The Standard Contractual Clauses shall be amended with the following modifications:
- references to "Regulation (EU) 2016/679" shall be interpreted as references to the UK GDPR or Swiss DPA (as applicable);
- references to specific Articles of "Regulation (EU) 2016/679" shall be replaced with the equivalent article or section of the UK GDPR or Swiss DPA (as applicable);
- references to Regulation (EU) 2018/1725 shall be removed;
- references to "EU", "Union" and "Member State" shall be replaced with references to the "UK" or "Switzerland" (as applicable);
- references to the "competent supervisory authority" shall be the United Kingdom Information Commissioner or Swiss Federal Data Protection Information Commissioner (as applicable);
- references to the "competent supervisory authority" and "competent courts" shall be replaced with references to the "Information Commissioner" and the "courts of England and Wales" or the "Swiss Federal Data Protection Information Commissioner" and "applicable courts of Switzerland" (as applicable);
- in Clause 17, the Standard Contractual Clauses shall be governed by the laws of England and Wales or Switzerland (as applicable); and
- to the extent the UK GDPR applies to the processing, Clause 18 shall be replaced to state: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts”; and
- to the extent the Swiss DPA applies to the processing, Clause 18 shall be replaced to state: “Any dispute arising from these Clauses shall be resolved by the competent courts of Switzerland. The Parties agree to submit themselves to the jurisdiction of such courts”.