Last Updated: June 9, 2023
This Data Processing Addendum (“DPA”) and its Attachments form part of the Terms of Use or other written electronic agreement between Smart Ecosystem, Inc. (“Company”, “we”, or “us”) and you (the “Contract”) to provide certain labeling, annotation, collection or other services (“Services”). In providing the Services, you may process data, including personal data as defined under applicable data protection laws, on our behalf where we are processing such data on behalf of third-party Controllers.
“Adequacy Decision” shall mean a decision by the European Commission or the UK Government that a jurisdiction located outside of the EEA or the UK provides an adequate level of data protection, and that Personal Data to which the GDPR or UK GDPR applies may therefore flow freely to that jurisdiction without further safeguards being necessary, including but not limited to, the Standard Contractual Clauses and the UK Addendum.
“Affiliate” means any entity under the control of a Party where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Applicable Privacy Law(s)” means all applicable worldwide data protection and privacy laws and regulations, including: EU data protection law – including, but not limited to: (a) (EU) 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) (the “GDPR”); (b) European Directive 2002/58/EC (the “e-Privacy Directive”) and Directive 2009/136/EC (the “Cookie Directive”), together with any national implementing laws in any Member State of the EU or in the UK; and (c) the GDPR as it forms part of domestic law in the UK by virtue of the European Union (Withdrawal) Act 2018 and the Data Protection Act 2018 (the “UK GDPR”) – and any equivalent legislation, or legislation dealing with the same subject matter as the foregoing, anywhere in the world; each as applicable to either Party, and each as amended, consolidated or replaced from time to time. The terms “Controller”, “Processor,” “processing,” “Personal Data”, “Data Subject”, and “Special Categories of Data” used in this DPA shall have the meanings given to them in the GDPR. Where this DPA does not draw a distinction between the GDPR and the UK GDPR, it is assumed that the same requirements apply in respect of each of them.
“EEA” means, for the purposes of this DPA, the member states of the EU and European Economic Area.
“Effective Date” means the date on which this DPA is executed by the Parties.
“Party” means you or us, or together the “Parties”, under this DPA.
“Security Incident” means any breach of security leading to, or reasonably believed to have led to, the accidental or unlawful destruction, loss, alteration of, or unauthorized disclosure or access to, Personal Data, including Personal Data.
“Standard Contractual Clauses” means the clauses set forth in Attachment A which have been approved by the European Commission, on or about June 2021 in Implementing Decision (EU) 2021/914, as a legal basis mechanism for the transfer of Personal Data to a third country (being any country outside the European Economic Area (EEA)).
“Sub-processor” means a party engaged by a Processor to process Personal Data on its behalf.
“Supervisory Authority” means an independent public authority responsible for monitoring compliance with Applicable Privacy Laws within its jurisdiction, including, without limitation, a supervisory authority as that term is defined in the GDPR, and the UK Information Commissioner’s Office.
“Term” means: (a) the term of the Contract; and (b) any period after the termination or expiry of the Contract during which you process Personal Data, until you have deleted, destroyed or returned such Personal Data in accordance with the terms of this DPA.
“UK Addendum” means the UK Information Commissioner’s Office’s International Data Transfer Addendum to the Standard Contractual Clauses, VERSION B1.0, in force 21 March 2022, set out in Attachment B.
2.1 You hereby agree that you shall be a Sub-processor with respect to the processing of Personal Data under the Contract, acting on behalf of Company (itself a Processor acting on behalf of third-party Controllers). You agree that you will comply with the requirements of this DPA and the Contract, at no additional cost to Company, at all times during the Term of the Contract.
2.2 Each Party shall comply with its obligations under Applicable Privacy Law(s) in respect of any Personal Data it processes under this DPA.
2.3 You shall at all times: (i) only process the Personal Data strictly and solely to the extent necessary in connection with this DPA, or as is necessary for the purpose of providing the Services to Company under the Contract, and in accordance with Company’s documented instructions received from time-to-time; and (ii) not process the Personal Data for your own purposes or those of any third party.
2.4 If you are required by any applicable law to process Personal Data for other purposes, you agree to promptly notify Company of such other purposes before performing the processing required, unless such law prohibits notifying Company; with respect to Personal Data to which the GDPR or UK GDPR applies, you may only process such Personal Data outside of Company’s documented instructions where you are required to do so by the laws of the EU, a European Member State, or the UK specifically (i.e., and not the laws of any other jurisdiction, including but not limited to the laws of the United States).
2.5 If you become aware or believe that any data processing instruction from Company violates Applicable Privacy Law(s) or you are unable to comply with Company’s data processing instructions for any reason, or you are unable to comply with the terms of the Contract or this DPA, you shall promptly: (i) notify Company of such inability, providing a reasonable level of detail as to the instructions with which you cannot comply and the reasons why you cannot comply, to the greatest extent permitted by applicable law; and (ii) cease all processing of the Personal Data (other than merely storing and maintaining the security of the Personal Data) until such time as Company issues new instructions with which you are able to comply.
2.6 You shall not, whether through action or omission, place Company in breach of any Applicable Privacy Laws.
3.1 You shall not subcontract any processing of the Personal Data to a further sub-processor without the prior written consent of Company. If Company, in its sole and absolute discretion, chooses to grant such consent, you may not disclose any Personal Data to such sub-processor without first entering into a binding written agreement with the sub-processor that: (i) imposes on the sub-processor the same obligations that apply to you under this DPA with respect to the processing of Personal Data; and (ii) grants Company the right to enforce such agreement.
4.1 You shall, taking into account the nature of the processing, cooperate with Company to enable Company (or its third-party Controllers) to respond to any requests, complaints or other communications from Data Subjects and governmental, regulatory or judicial bodies relating to the processing of Personal Data under the Contract, including requests from Data Subjects seeking to exercise their rights under Applicable Privacy Law(s). You shall promptly pass any such request, complaint or communication made directly to you onto Company and shall not respond to such request, complaint or communication without our express authorization.
4.2 You shall promptly provide Company with all reasonable assistance necessary to enable Company (or its third-party Controllers) to: (i) notify relevant breaches of the GDPR to the relevant Supervisory Authorities and/or affected Data Subjects; (ii) conduct a data protection impact assessment; and (iii) consult with applicable Supervisory Authorities in respect of any proposed processing activity that presents a high risk to Data Subjects, where required.
5.1 You will implement and maintain all appropriate technical and organizational security measures to protect Personal Data against Security Incidents and to preserve the security, integrity, availability and confidentiality of Personal Data, in accordance with Article 32 GDPR and the Company’s Acceptable Use Policy (“Company Security Measures”).
5.2 Only you are authorized to process any Personal Data as part of the Services. At all times, you shall ensure that you comply with the Company Security Measures.
6.1 You shall immediately notify Company, and in any event within twenty-four (24) hours, of: (i) becoming aware of any Security Incident affecting Personal Data; (ii) becoming aware of any material breach of this Clause 6.1; or (iii) receipt of any correspondence or communication from any Data Subject, Supervisory Authority or third party regarding the processing of Personal Data. Furthermore, in the event of a Security Incident, and without prejudice to any other right or remedy available to Company, you shall promptly take all such measures and actions as directed by Company to remedy or mitigate the effects of the Security Incident and shall keep Company up-to-date about all developments in connection with the Security Incident.
7.1 You shall: (i) create, (ii) keep up-to-date for the duration of your processing of Personal Data, and (iii) maintain for six (6) years thereafter, complete and accurate records in writing (including in electronic form) sufficient to demonstrate your compliance with the obligations set out in this DPA, and you shall disclose such records to Company, or any Supervisory Authority, promptly upon demand.
7.2 Company (or its appointed representatives) may carry out an inspection of your operations and facilities during normal business hours and subject to reasonable prior notice at Company’s sole discretion, including, but not limited to, where Company considers it necessary or appropriate (for example, without limitation, where Company has reasonable concerns about your data protection compliance, following a Security Incident (for which no prior notice will be required) or following instruction from a Supervisory Authority or the relevant third-party Controllers).
8.1 The parties will only transfer, or allow the transfer of, Personal Data in accordance with the provisions of the Applicable Privacy Law(s) regarding international data transfers.
8.2 Without prejudice to Section 8.3, to the extent that you are located in a jurisdiction outside of the EEA or the UK that does not benefit from an Adequacy Decision, and the transfer of Personal Data to you is subject to the GDPR and/or the UK GDPR, the Parties hereby enter into the Standard Contractual Clauses (Module 3), attached hereto at Attachment A and, to the extent that the UK GDPR applies, the Parties hereby enter into the UK Addendum, attached hereto at Attachment B. In this context, and for the purposes of the Standard Contractual Clauses, and only as between you and Company, you agree that you are “data importer” and Company is “data exporter”.
8.3 Without prejudice to Section 8.2, to the extent that you are located in the EEA or the UK, and you transfer Personal Data to the Company, the Parties hereby enter into the Standard Contractual Clauses (Module 3), attached hereto at Attachment A, and to the extent you are located in the UK, the Parties hereby also enter into the UK Addendum, attached hereto at Attachment B, in respect of such transfers. In this context, and for the purposes of the Standard Contractual Clauses, and only as between you and Company, you agree that Company is “data importer” and you are “data exporter”.
8.4 In the context of a transfer of Personal Data under this DPA it is the responsibility of each Party to be clear about its role in respect of any transfer, and to consult the other if it is uncertain.
8.5 The Parties agree that in the event that a Supervisory Authority and/or Applicable Privacy Law(s) no longer allows the lawful transfer of Personal Data to you and/or requires that Company adopt an alternative transfer solution that complies with Applicable Privacy Law(s), you will fully cooperate with Company to discuss and agree an amendment to this DPA to remedy such non-compliance and/or cease processing of Personal Data.
8.6 It is not the intention of either Party, nor the effect of this DPA, to contradict or restrict any of the provisions set forth in the Standard Contractual Clauses. Accordingly, if and to the extent the Standard Contractual Clauses conflict with any provision of this DPA, the Standard Contractual Clauses shall prevail. In no event does this DPA restrict or limit the rights of any Data Subject or of any competent Supervisory Authority.
9.1 Within thirty (30) days after termination or expiration of this DPA, you shall promptly, permanently and securely delete (or, at the election of Company, return) all Personal Data (including copies) in your possession or control. This requirement shall not apply to the extent that you are required by applicable law to retain some or all of the Personal Data, in which event you shall isolate and protect the Personal Data from any further processing except to the extent required by such law; with respect to Personal Data to which the GDPR or UK GDPR applies, you may only continue to retain copies of such Personal Data after the end of the provision of the Services where applicable laws of the EU, a European Member State, or the UK require otherwise.
10.1 This DPA shall take effect on the Effective Date and unless terminated earlier in accordance with this Clause 10.1, will continue for the Term.
10.2 The Parties acknowledge and agree that any breach by you of this DPA shall constitute a material breach of this DPA and the Contract, in which event and without prejudice to any other right or remedy available to it, Company may elect to immediately terminate the Contract (in whole or in part) in accordance with the termination provisions in the Contract.
10.3 If there is any conflict between any provision in this DPA and any provision in the Contract, this DPA controls and takes precedence, except as expressly set forth herein.
10.4 The terms and conditions in this DPA constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, with respect to its subject matter.
10.5 The Parties agree that notwithstanding any termination of the Contract and/or this DPA, the terms of this DPA shall continue in force until you have deleted or returned the Personal Data processed under this DPA in accordance with the terms of this DPA.
10.6 This DPA may not be modified except by a subsequent written instrument issued by Company. If any part of this DPA is held unenforceable, the validity of all remaining parts will not be affected.
10.7 Unless otherwise required by applicable law, this DPA and any dispute or claim (including non-contractual disputes or claims) arising under or in connection with this DPA or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales and each Party agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this DPA or its subject matter or formation.
10.8 The Parties hereby acknowledge and agree that any remedies arising from any Security Incident or any breach by you of the terms of this DPA or Applicable Privacy Law(s) are not and shall not be subject to any exclusion or limitation of liability provision that applies to you under the Contract.
(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:
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
(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:
(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.
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.
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data 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.
(b) 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.
(c) 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.
(d) 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.
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.
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.
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.
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).
(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, 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.
(b) 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.
(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, 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.
(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 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.
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.
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 (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:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
(a) 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.
(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 controller.
(c) 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.
(d) 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.
(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
(f) 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.
(g) 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.
(a) The data importer shall not sub- contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the prior specific written authorisation of the controller. The data importer shall submit the request for specific authorisation at least fourteen (14) business days prior to the engagement of the sub- processor, together with the information necessary to enable the controller to decide on the authorisation. It shall inform the data exporter of such engagement. The list of sub-processors already authorised by the controller can be found in Annex III. The Parties shall keep Annex III up to date.
(b) 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. 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 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.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
(a) 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.
(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.
(c) 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.
(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:
(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 Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
(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:
(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). The data exporter shall forward the notification to the controller.
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation, 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 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.
(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:
The data exporter shall forward the notification to the controller.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). The data exporter shall forward the information to the controller.
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
(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. The data exporter shall make the assessment available to the controller.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
(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:
In these cases, it shall inform the competent supervisory authority and the controller of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) 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 this shall be the law of Republic of Ireland.
(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 Republic of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Data exporter(s): The party defined as the “data exporter” in Section 7.2 or 7.3 of the Data Processing Addendum, as applicable.
Data importer(s): The party defined as the “data importer” in Section 7.2 or 7.3 of the Data Processing Addendum, as applicable.
Categories of Data Subjects whose Personal Data is transferred
Data subjects of “Personal Data”, as defined in the Data Processing Addendum.
Categories of Personal Data transferred
“Personal Data”, as defined in the Data Processing Addendum.
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
It is not anticipated that categories of sensitive data will be transferred under these Clauses.
The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)
Continuous for the duration of the “Services”, as defined in the Data Processing Addendum.
Nature of the processing
The nature of the data processing is specified in respect of each Category of transferred Personal Data, in the section below.
Purpose(s) of the data transfer and further processing
Provision of the “Services”, as defined in the Data Processing Addendum.
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 “Services”, as defined in the Data Processing Addendum.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Sub-processors may be engaged in order to process Personal Data for any of the purposes set out in this in Annex.
Data Protection Commission
The “Company Security Measures” as defined in the Data Processing Addendum shall apply.
The Controller has not authorized any Sub-processors as at the date of these Clauses. Additional Sub-processors may be added subject to compliance with Clause 9 of these Clauses and Section 2 of the Data Processing Addendum.
VERSION B1.0, in force 21 March 2022
This UK Addendum has been issued by the Information Commissioner for parties making restricted transfers. The Information Commissioner considers that it provides appropriate safeguards for restricted transfers when it is entered into as a legally binding contract.
Start date: The date on which the Data Processing Addendum is entered into.
The Parties:
Exporter (who sends the Restricted Transfer)
Importer (who receives the Restricted Transfer)
Addendum EU SCCs: The version of the Standard Contractual Clauses, set out in Attachment A above, to which this UK Addendum is appended.
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Standard Contractual Clauses (other than the parties), and which for this UK Addendum is set out in:
Annex I.A: List of Parties: Annex I.A in Attachment A, above.Annex I.B.: Description of Transfer: Annex I.B in Attachment A, above.Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: See Annex II in Attachment A, above.
“Approved UK Addendum” means the template UK 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.
Ending this UK Addendum when the Approved UK Addendum changes
Which parties may end this UK Addendum as set out in Section 19:
☐ Importer
☐ Exporter
☒ neither Party
Mandatory Clauses
Part 2: Mandatory Clauses of the Approved UK Addendum, being the template UK Addendum B.1.0 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 of those Mandatory Clauses.
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