Data Processing Agreement

Effective date: April 8, 2024

This Data Processing Agreement (the “Agreement”) is entered by and between the Client, specified in the respective Service Order or in the Account (the “Controller”) and Internet Investments Group Limited, a legal entity incorporated and acting under the laws of Hong Kong, having its registered office at 9th Floor, Amtel Building,148 Des Voeux Road Central, Central, Hong Kong (the “Processor”).

This Agreement is a part of Terms of Services (as defined below). Capitalized terms used but not defined in this Agreement have the meaning given to them in the Terms of Services.

This Agreement applies where and only to the extent that the Processor processes Personal Data on behalf of the Controller in the course of providing the Services and such Personal Data (as defined below) is subject to Applicable Data Protection Laws (as defined below) of the appropriate jurisdiction, including the State of California, the European Union, the European Economic Area and/or its member states, Switzerland and/or the United Kingdom. The Parties agree to comply with the terms and conditions in this Agreement in connection with such Personal Data.

1. DEFINITIONS

Unless defined in the Terms of Services, all capitalized terms used in this Agreement shall have the meanings given them below:

1.1. Applicable Data Protection Law means any applicable privacy and data protection laws and regulations. With respect to Personal Data from Europe, “Applicable Data Protection Law” shall include, but not be limited to General Data Protection Regulation (Regulation (EU) 2016/679) laws and binding regulations of the European Union, European Economic Area (“EEA”) and/or their member states, and/or Switzerland and/or the United Kingdom, applicable to the Processing of Personal Data under this Agreement. With respect to Personal Data from California residents, “Applicable Data Protection Law” shall include, but not be limited to the California Consumer Privacy Act of 2018 (“CCPA”).

1.2. Controller means the entity which determines the purposes and means of the Processing of Personal Data. With respect to Personal Data from California residents, the Controller shall include the term “Business” according to the meaning given to that term in the CCPA.

1.3. Data Subject means (i) an individual who is the subject of Personal Data; or (ii) a “Consumer” as the term is defined in the CCPA.

1.4. Party means any of the Controller or the Processor, and “Parties” means the Controller and the Processor.

1.5. Personnel means any employee, agent, contractor, work-for-hire or any other person working under the direct authority of the Processor.

1.6. Processor has the meaning given in Applicable Data Protection Law, with respect to Personal Data from California residents, the Processor shall include the term “Service provider” according to the meaning given to that term in the CCPA.

1.7. Terms of Services means the agreement between the Controller and the Processor for the provision of the Services.

1.8. Services means the services described in the Terms of Services.

1.9. Service Data means electronic data, text, messages, communications or other materials processed within the scope of the Services, including without limitation, Personal Data.

1.10. Standard Contractual Clauses means Commission Implementing Decision of 4 June 2021 on standard contractual clauses for the transfer of personal data to processors established in third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.

1.11. Sub-processor means any third party processor engaged by the Processor to assist in fulfilling its obligations with respect to providing the Services pursuant to the Terms of Services or this Agreement in accordance with the Controller’s instructions and the terms of its written subcontract.

1.12. The terms “Personal Data”, “Processing”, “Process”, “Supervisory Authority”, “Personal Data Breach” shall have the meanings set out in the Applicable Data Protection Law even if such terms are not capitalized in this Agreement.

2. PURPOSE

2.1. The Controller and the Processor have entered the Terms of Services pursuant to which the Processor provides the Controller with the Services.

2.2. The Parties are entering into this Agreement to ensure that the Processing by the Processor of Personal Data, within the Services is done in a manner compliant with Applicable Data Protection Law and its requirements regarding the collection, use and retention of Personal Data of Data Subjects.

3. OWNERSHIP OF THE SERVICE DATA

All Service Data Processed under the terms of this Agreement and the Terms of Services shall remain the property of the Controller. Under no circumstances will the Processor act, or be deemed to act, as a “controller” (or equivalent concept) of the Service Data Processed within the Services under any Applicable Data Protection Law.

4. OBLIGATIONS OF THE PROCESSOR

4.1. The Parties agree that the subject-matter and duration of the Processing performed by the Processor under this Agreement, including the nature and purpose of the Processing, the type of Personal Data, and categories of Data Subjects, shall be as described in Annex I to the Standard Contractual Clauses and in the Terms of Services.

4.2. As part of the Processor providing the Services to the Controller under the Terms of Services, the Processor agrees and declares as follows:

  1. to process Personal Data in accordance with the Controller's documented instructions as set out in the Terms of Services and this Agreement or as otherwise necessary to provide the Services, except where required otherwise by applicable laws (and provided such laws do not conflict with Applicable Data Protection Law); in such case, the Processor shall inform the Controller of that legal requirement upon becoming aware of the same (except where prohibited by applicable laws);
  2. to ensure that all Personnel of the Processor are fully aware of their responsibilities to protect Personal Data in accordance with this Agreement and have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
  3. to implement and maintain appropriate technical and organizational measures to protect Personal Data against Personal Data Breach, provided that such measures shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, so as to ensure a level of security appropriate to the risks represented by the Processing and the nature of the Personal Data to be protected;
  4. to notify the Controller without undue delay, but no later than 48 hours, in the event of a confirmed Personal Data Breach affecting the Controller’s Service Data and to cooperate with the Controller as necessary to mitigate or remediate the Personal Data Breach;
  5. taking into account the nature of the Processing, to assist the Controller (including by appropriate technical and organizational measures), insofar as it is commercially reasonable, to fulfill the Controller’s obligation to respond to requests from Data Subjects to exercise their rights under Applicable Data Protection Law (a “Data Subject Request”). In the event the Processor receives a Data Subject Request directly from a Data Subject, it shall (unless prohibited by law) direct the Data Subject to the Controller in the first instance. However, in the event the Controller is unable to address the Data Subject Request, taking into account the nature of the Processing and the information available to the Controller, the Processor, shall, on the Controller’s request and at the Controller’s reasonable expense, address the Data Subject Request, as required under the Applicable Data Protection Law;
  6. upon request, to provide the Controller with commercially reasonable information and assistance, taking into account the nature of the Processing and the information available to the Processor, to help the Controller to conduct any data protection impact assessment or Supervisory Authority consultation it is required to conduct under Applicable Data Protection Law;
  7. upon termination of the Terms of Services, to comply with the requirements of Section 9 (Return and Destruction of Personal Data);
  8. to comply with the requirements of Section 6 (Audit) in order to make available to Controller information that demonstrates the Processor’s compliance with this Agreement;
  9. to appoint a data protection officer who will act as a point of contact for the Controller, and coordinate and control compliance with this Agreement, including the measures detailed in Annex II to the Standard Contractual Clauses.

4.3. The Processor shall immediately inform the Controller if, in its opinion, the Controller’s Processing instructions infringe any law or regulation. In such an event the Processor is entitled to refuse Processing of Personal Data that it believes to be in violation of any law or regulation.

5. SUB-PROCESSORS AND THIRD PARTY SERVICES

5.1. The Processor has the right to engage Sub-processors in accordance with Clause 9 of the Standard Contractual Clauses.

5.2. The Services provided by the Processor may be integrated into, or used in conjunction with, various third-party products and services (collectively, the "Third-Party Services"). The Processor does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services, including, without limitation, their content or the manner in which they handle Service Data (including Personal Data) or any interaction between the Controller and the provider of such Third-Party Services. The Processor is not liable for any damage or loss caused or alleged to be caused by or in connection with the Controller’s enablement, access or use of any such Third-Party Services, or the Controller’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services. The providers of the Third-Party Services shall not be deemed Sub-processors for any purpose under this Agreement.

6. AUDIT

Pursuant to Clause 8.9 of the Standard Contractual Clauses, upon the Controller’s request the Processor shall make available to the Controller (or the Controller’s independent, third-party auditor) information regarding the Processor’s compliance with the obligations set forth in the Agreement in the form of the third-party audits. The Controller may contact the Processor to request an on-site audit of the Processor’s procedures relevant to the protection of Personal Data, but only to the extent required under Applicable Data Protection Law and subject to 45 calendar days' written notice to the Processor prior to conducting the audit. Before the commencement of any such on-site audit, the Controller and the Processor shall mutually agree upon the scope, timing, and duration of the audit. The Controller shall promptly notify the Processor with information regarding any non-compliance discovered during the course of an audit, and the Processor shall use commercially reasonable efforts to address any confirmed non-compliance.

7. INTERNATIONAL DATA EXPORTS

7.1. The Controller acknowledges that the Processor and its Sub-processors may maintain data processing operations in countries that are outside of the European Union and/or the EEA and/or their member states and/or Switzerland and/or the United Kingdom.

7.2. Any transfer of Personal Data made subject to this Agreement from the European Union and/or the EEA and/or their member states and/or Switzerland and/or the United Kingdom to any countries which do not ensure an adequate level of data protection within the meaning of the Applicable Data Protection Law shall, to the extent such transfer is subject to the Applicable Data Protection Law, be undertaken by the Processor through the Standard Contractual Clauses set forth in Exhibit A to this Agreement. The Parties will apply different modules (Module TWO: Transfer controller to processor or Module THREE: Transfer processor to processor) depending on what role each Party has (controller/processor or processor/processor).

7.3. The Parties agree that each Party may disclose any relevant privacy provisions in this Agreement to a relevant Supervisory Authority.

7.4. Notwithstanding the foregoing, the Controller hereby authorizes the Processor to transfer the Personal Data to Personnel located outside of the EU and/or the EEA and/or their member states and/or Switzerland and/or the United Kingdom. The Processor undertakes to provide the list of such countries upon request.

8. OBLIGATIONS OF THE CONTROLLER

As part of the Controller receiving the Services under the Terms of Services, the Controller agrees and declares as follows:

  1. it is solely responsible for the accuracy of Personal Data and the means by which such Personal Data is acquired and the Processing of Personal Data by the Controller, including instructing Processing by the Processor in accordance with this Agreement, is and shall continue to be in accordance with all the relevant provisions of the Applicable Data Protection Law, particularly with respect to the security, protection and disclosure of Personal Data;
  2. that if Processing by the Processor involves any “special” or “sensitive” categories” of Personal Data (as defined under Applicable Data Protection Law), the Controller has collected such Personal Data in accordance with Applicable Data Protection Law;
  3. that it shall respond in reasonable time and to the extent reasonably practicable to enquiries by Data Subjects regarding the Processing of their Personal Data by the Controller, and to give appropriate instructions to the Processor in a timely manner; and
  4. that it shall respond in a reasonable time to enquiries from a Supervisory Authority regarding the Processing of relevant Personal Data by the Controller.

9. RETURN AND DESTRUCTION OF PERSONAL DATA

9.1. Upon the Controller's written request, the Processor will make available to the Controller the ability to export or download the Service Data for thirty (30) days after the effective date of termination or expiration of the Account subject to the terms set forth in the Terms of Services. Thereafter, the Processor will have no obligation to maintain or provide the Service Data and the Processor will delete the Service Data within sixty (60) days unless prohibited by law or legal order.

10. DURATION

10.1. This Agreement will remain in force as long as the Processor Processes Personal Data on behalf of the Controller under the Terms of Services.

11. CCPA

11.1. The Processor represents and warrants that (a) it is a “service provider,” for the purposes of the Services it provides to the Controller pursuant to the Terms of Services, according to the meaning given to that term in Section 1798.140 of the CCPA; (b) it is a corporation, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners; and (c) the Processor will Process Personal Data only on behalf of the Controller and pursuant to this Agreement.

11.2. The Processor shall not (a) “sell” (as defined in § 1798.140 of the CCPA) Personal Data; (b) disclose or transfer Personal Data to a “third party” (as defined in § 1798.140 of the CCPA) or other parties that would constitute selling; or (c) retain, use, or disclose any Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing the Personal Data for a commercial purpose (as defined in CCPA) other than providing the Services and for reasons permitted under the CCPA.

11.3. For the avoidance of doubt, the foregoing prohibits the Processor from retaining, using or disclosing Personal Data outside of the direct business relationship between the Processor and the Controller. The Processor and the Controller acknowledge and agree that (a) the Controller does not “sell” Personal Data to the Processor in connection with the Terms of Services; and (b) that the Processor’s access to Personal Data is not part of the consideration exchanged by the Parties in respect of the Terms of Services. The Processor hereby represents that it understands its obligations under the CCPA as a “Service Provider” and shall comply with them.

12. NO CONSEQUENTIAL DAMAGES; LIMITATION ON LIABILITY

12.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA THE CONTROLLER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF THE PROCESSOR), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

12.2. FOR THE AVOIDANCE OF DOUBT, THIS SECTION SHALL NOT BE CONSTRUED AS LIMITING THE LIABILITY OF EITHER PARTY WITH RESPECT TO CLAIMS BROUGHT BY DATA SUBJECTS.

13. MISCELLANEOUS

Periodically, the Processor may make revisions to this Agreement. Unless expressly stated by the Processor, these changes will take effect for the Controller upon (i) the Controller continued use of the Services, or (ii) 30 days from posting of such modified Agreement on or through the Website. The Processor will make reasonable efforts to notify the Controller of these changes through various means. Information transferred under this Agreement are confidential and each party agrees and represents, on behalf of itself, its employees and agents to whom it is permitted to disclose such information that it will not disclose such information to any third party; provided, however, that each party shall have the right to disclose such information to its officers, directors, employees, auditors, attorneys and third party contractors who are under an obligation to maintain the confidentiality thereof and further may disclose such information as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction or as reasonably necessary to comply with any applicable law or regulation. Each Party's rights and obligations concerning assignment and delegation under this Agreement shall be as described in the Terms of Services to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. This Agreement and the Terms of Services constitute the entire understanding between the Parties with respect to the subject matter herein, and shall supersede any other arrangements, negotiations or discussions between the Parties relating to that subject-matter. In the event of any conflict or inconsistency between the terms of the Terms of Services and this Agreement, the terms of this Agreement shall take precedence over the Terms of Services and any other associated contractual document between the parties, to the extent of any such conflict.

14. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Terms of Services, unless required otherwise by Applicable Data Protection Law. Notices under this Agreement should be sent in accordance with the notice provisions in the Terms of Services.

15. LIST OF EXHIBITS

Exhibit A: Standard Contractual Clauses

Exhibit B: UK Addendum to the EU Standard Contractual Clauses


Exhibit A
STANDARD CONTRACTUAL CLAUSES

for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 in accordance with Commission Implementing Decision (EU) 2021/914 of 4 June 2021

SECTION I

Clause 1 – Purpose and scope

  1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
  2. The Parties:
    1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
    2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
  3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  4. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2 – Effect and invariability of the Clauses

  1. 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.
  2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3 – Third-party beneficiaries

  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
    2. Clause 8 – Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
    3. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
    4. Clause 12 – Modules Two and Three: Clause 12(a), (d) and (f);
    5. Clause 13;
    6. Clause 15.1(c), (d) and (e);
    7. Clause 16(e);
    8. Clause 18 – Modules Two and Three: Clause 18(a) and (b).
  2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4 – Interpretation

  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5 – Hierarchy

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

Clause 6 – Description of the transfer(s)

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

Clause 7 – Optional Docking clause

  1. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
  2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
  3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8 – Data protection safeguards

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

MODULE TWO: Transfer controller to processor

8.1 Instructions

  1. 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.
  2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

  1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
  2. 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.
  3. 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.
  4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

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

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

  1. 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;
  2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
  3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
  4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

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

8.9 Documentation and compliance

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

MODULE THREE: Transfer processor to processor

8.1 Instructions

  1. The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
  2. The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
  3. The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
  4. The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter (5).

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller 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

  1. 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, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. 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 or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
  2. The data importer shall grant access to the 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.
  3. 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, without undue delay, the data exporter and, where appropriate and feasible, the controller 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 data breach, including 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.
  4. 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 its controller so that the latter may in turn 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 set out in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (6) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

  1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
  2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
  3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
  4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

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

8.9 Documentation and compliance

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
  2. 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 controller.
  3. The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
  4. The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
  5. Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
  6. 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.
  7. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9 – Use of sub-processors

MODULE TWO: Transfer controller to processor

  1. 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 15 calendar 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.
  2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
  3. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
  4. 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.
  5. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

MODULE THREE: Transfer processor to processor

  1. The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least 15 calendar days in advance, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
  2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), 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. (9) 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.
  3. The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.
  4. 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.
  5. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10 – Data subject rights

MODULE TWO: Transfer controller to processor

  1. 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.
  2. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

MODULE THREE: Transfer processor to processor

  1. The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
  2. (b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.

Clause 11 – Redress

  1. 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.
  2. 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.
  3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
    1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
    2. refer the dispute to the competent courts within the meaning of Clause 18.
  4. 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.
  5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12 – Liability

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13 – Supervision

  1. [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
  2. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

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

Clause 14 – Local laws and practices affecting compliance with the Clauses

  1. 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.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
    2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
    3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
  3. 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.
  4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]
  6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three:, if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15 – Obligations of the data importer in case of access by public authorities

15.1 Notification

  1. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
    1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
    2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer. [For Module Three: The data exporter shall forward the notification to the controller.]
  2. 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.
  3. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
  4. 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.
  5. 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

  1. 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).
  2. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]
  3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16 – Non-compliance with the Clauses and termination

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. 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).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
    1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
      In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
  4. 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.
  5. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17 – Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.

Clause 18 – Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of the Netherlands.
  3. 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.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.

ANNEX I TO THE STANDARD CONTRACTUAL CLAUSES

A. LIST OF PARTIES

Data exporter:
Name: As specified in the respective Service Order or the Account.
Address: As specified in the respective Service Order or the Account.
Contact person’s name, position and contact details: As specified in the respective Service Order or the Account.
Activities relevant to the data transferred under these Clauses:The data exporter is a client of the data importer’s services.
Role: Controller or Processor

Data importer:
Name: Internet Investments Group Limited
Address: 9th Floor, Amtel Building,148 Des Voeux Road Central, Central, Hong Kong
Contact person’s name, position and contact details: DPO, [email protected]
Activities relevant to the data transferred under these Clauses:Provision of services under the Terms of Services.
Role: Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred
The data exporter’s customers and end-users.

Categories of personal data transferred
Any personal data provided by the data exporter to the data importer in the course of providing services, which may include, but not limited to, the following categories of data: first and last name, email address, telephone number, addresses (business or personal), date of birth, communications, IP addresses, order information, and any personal data submitted by the data exporter’s customers and end-users.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The data importer does not intentionally collect or process any sensitive categories of personal data in the provision of its services.
However, sensitive categories of personal data may from time to time be inadvertently processed by data importer where the data exporter or its customers or end users choose to include this type of data within the services. As such, the data exporter is solely responsible for ensuring the legality of any sensitive categories of personal data it or its customers or end users choose to process using data importer’s services.

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

Nature and purpose(s) of the data transfer and further processing
The data importer will process personal data solely to fulfill its purposes under the Terms of Services executed between the data importer and data exporter, including processing personal data: (i) to provide the service in accordance with the Terms of Services; (ii) to perform any steps necessary for the performance of the Terms of Services; (iii) to perform any processing activity initiated by data exporter in its use of the services; and (iv) to comply with other reasonable instructions provided by data exporter that are consistent with the terms of the Terms of Services.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Duration of the service provision under the Terms of Services executed between the data importer and data exporter.

For transfers to (sub-) processors:
The sub-processor will process personal data as necessary to perform the services pursuant to the Terms of Services executed between the data importer and data exporter. The sub-processor will process personal data for the duration of the service provision under the Terms of Services, unless otherwise agreed in writing. Identities of the sub-processors used for the provision of the services and their country of location are listed at List of Sub-processors.

C. COMPETENT SUPERVISORY AUTHORITY

Dutch Data Protection Authority


ANNEX II TO THE STANDARD CONTRACTUAL CLAUSES TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

The Processor reserves the right to update its security program from time to time; provided, however, any update will not materially reduce the overall protections set forth in this Annex.

1. Physical Controls

Controls related to the physical environment, such as ID badges, biometric door access to the office/space, cypher/key locks to the doors or cabinets/safes, visual controls of the information access (via windows or screen):

  • Closed-Circuit Television (CCTV) and Security Access Cameras;
  • Biometric Access Control System;
  • Fire Suppression Systems;
  • Heating, ventilation, and air conditioning (HVAC) and Humidity Controls;
  • Physical Security Areas and Zones Controls.

2. Logical Controls

Controls are defined as restricting virtual access to data; they consist of identification, authentication, and authorization protocols utilized worldwide to protect data from unauthorized access, including password programs, smart cards, or tokens to identify and screen users and access levels:

  • Data Encryption;
  • Data Anonymization;
  • Endpoint Encryption;
  • Encryption in transit;
  • Role Based Access Control;
  • Anti-virus and Anti-malware protection;
  • Role Based Access Control (RBAC);
  • Mobile Device Management.

3. Technical/Operational Controls

Controls related to the technical and operational processes and procedures:

  • Project Management Process.

4. Administrative/Management Controls

Controls related to administration and management processes, procedure, and principles:

  • Need to Know Basis Principle;
  • Non-Disclosure Agreements;
  • Account Termination and Off-boarding Process.

ANNEX III TO THE STANDARD CONTRACTUAL CLAUSES LIST OF SUB-PROCESSORS

List of sub-processors can be seen here: List of Sub-processors.


Exhibit B
UK ADDENDUM TO THE EU STANDARD CONTRACTUAL CLAUSES

Part 1: Tables

Table 1: Parties

Start dateThe Effective Date as set forth in the DPA.
The PartiesExporter (who sends the Restricted Transfer)Importer (who receives the Restricted Transfer)
Parties’ detailsFull legal name: The Exporter Full legal name is specified in Annex I to the Exhibit A of this DPA. Trading name (if different): n/a Main address (if a company registered address): The Exporter Main address is specified in Annex I to the Exhibit A of this DPA. Official registration number (if any) (company number or similar identifier): The Exporter Official registration number is specified in the Agreement.Full legal name: The Importer Full legal name is specified in Annex I to the Exhibit A of this DPA. Trading name (if different): n/a Main address (if a company registered address): The Importer Main address is specified in Annex I to the Exhibit A of this DPA. Official registration number (if any) (company number or similar identifier): The Importer Official registration number is specified in the Agreement.
Key ContactFull Name (optional), Job Title, Contact details including email: The Exporter key contacts are specified in Annex I to the Exhibit A of this DPA.Full Name (optional), Job Title, Contact details including email: The Importer key contacts are specified in Annex I to the Exhibit A of this DPA.
Signature (if required for the purposes of Section 2)n/an/a

Table 2: Selected SCCs, Modules and Selected Clauses

Addendum EU SCCsThe version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information:
Date: the Effective Date of this DPA.
Reference (if any): n/a
Other identifier (if any): n/a
Or
the Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum:
ModuleModule in operationClause 7 (Docking Clause)Clause 11 (Option)Clause 9a (Prior Authorisation or General Authorisation)Clause 9a (Time period)Is personal data received from the Importer combined with personal data collected by the Exporter?
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Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: As set forth in Annex I to the Exhibit A of this DPA.

Annex 1B: Description of Transfer: As set forth in Annex I to the Exhibit A of this DPA.

Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: As set forth in Annex II to the Exhibit A of this DPA.

Annex III: List of Sub processors (Modules 2 and 3 only): As set forth in Annex III to the Exhibit A of this DPA.

Table 4: Ending this Addendum when the Approved Addendum Changes

Ending this Addendum when the Approved Addendum changesWhich Parties may end this Addendum as set out in Section 17: Importer Exporter neither Party

Part 2: Mandatory Clauses

Entering into this Addendum

  1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
  2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

  1. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
AddendumThis International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCsThe version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.
Appendix InformationAs set out in Table 3.
Appropriate SafeguardsThe standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved AddendumThe template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.
Approved EU SCCsThe Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICOThe Information Commissioner.
Restricted TransferA transfer which is covered by Chapter V of the UK GDPR.
UKThe United Kingdom of Great Britain and Northern Ireland.
UK Data Protection LawsAll laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPRAs defined in section 3 of the Data Protection Act 2018.
  1. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
  2. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
  3. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
  4. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
  5. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

  1. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
  2. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
  3. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

  1. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
    1. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
    2. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
    3. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
  2. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
  3. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
  4. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
    1. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
    2. In Clause 2, delete the words:
      “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”;
    3. Clause 6 (Description of the transfer(s)) is replaced with:
      “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
    4. Clause 8.7(i) of Module 1 is replaced with:
      “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
    5. Clause 8.8(i) of Modules 2 and 3 is replaced with:
      “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
    6. References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
    7. References to Regulation (EU) 2018/1725 are removed;
    8. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
    9. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
    10. Clause 13(a) and Part C of Annex I are not used;
    11. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”; l. In Clause 16(e), subsection (i) is replaced with:
      “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”; m. Clause 17 is replaced with:
      “These Clauses are governed by the laws of England and Wales.”; n. Clause 18 is replaced with: “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 o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

  1. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
  2. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
  3. From time to time, the ICO may issue a revised Approved Addendum which:
    1. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
    2. reflects changes to UK Data Protection Laws;
    The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
  4. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
    1. its direct costs of performing its obligations under the Addendum; and/or
    2. its risk under the Addendum, and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
  5. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.