Last updated: May 18, 2022
This Data Processing Addendum (“Addendum" or "DPA”) forms part of the Master Subscription Agreement ("Agreement" or "MSA") between BigMarker, Inc. ("BigMarker") and the customer entity that is a party to the Agreement ("Customer"). This Addendum applies to BigMarker’s Processing of Customer Data under the Agreement.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
“Applicable Data Protection Laws” means, with respect to a party, all privacy, data protection and information security-related laws and regulations applicable to such party’s Processing of Personal Data.
“Customer Data” has the same meaning as defined in the Agreement. This Addendum applies to BigMarker’s Processing of Customer Data to the extent that such Customer Data constitutes Personal Data.
“Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
“Destinations” means third-party platforms to which Customer may instruct BigMarker to transmit Customer Data via direct platform integration. Commonly-used Destinations include, without limitation, CRM and marketing automation platforms including Salesforce, Pardot, Hubspot, Marketo, and Eloqua.
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar information defined in and governed by Applicable Data Protection Laws.
“Security Incident” means any confirmed unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data being processed by BigMarker. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.
“Subprocessor” means any third party authorized by BigMarker to Process any Customer Data.
“Usage Data” means metadata generated in the course of Customer’s use of the Services, including summary data describing the nature, duration, and results of Customer’s webinars and events.
The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
This Addendum forms part of the Agreement and except as expressly set forth in this Addendum, the Agreement remains unchanged and in full force and effect. If there is any conflict between this Addendum and the Agreement, this Addendum will govern.
Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.
Any liabilities arising under this Addendum are subject to the limitations of liability in the Agreement.
This Addendum will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Applicable Data Protection Laws.
This Addendum will automatically terminate upon expiration or termination of the Agreement.
The parties acknowledge and agree that with regard to the Processing of Customer Data, Customer may act as a controller or processor and BigMarker is a processor. BigMarker will process Customer Data in accordance with Customer’s instructions as outlined in Section 6 (Role and Scope of Processing).
Each party will comply with its obligations under Applicable Data Protection Laws with respect to its Processing of Customer Data.
Customer Instructions. BigMarker will Process Customer Data only in accordance with Customer’s instructions. Customer acknowledges that some instructions may incur additional costs and may require executing an additional Order. By entering into the Agreement, Customer instructs BigMarker to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by BigMarker as constituting instructions for purposes of this Addendum. Customer acknowledges and agrees that such instruction authorizes BigMarker to Process Customer Data (a) to perform its obligations and exercise its rights under the Agreement; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement.
For clarity, nothing in this Addendum limits BigMarker from transmitting Customer Data to and among Destinations as directed by Customer through the Services. The parties agree that Destinations are not Subprocessors of BigMarker and that, between the parties, Customer is solely responsible for the Processing of Customer Data by, and other acts and omissions of, Destinations or parties associated therewith.
Customer specifically authorizes BigMarker to use its Affiliates as Subprocessors, and generally authorizes BigMarker to engage Subprocessors to Process Customer Data. In such instances, BigMarker:
(i) will enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Addendum; and
(ii) remains liable for compliance with the obligations of this Addendum and for any acts or omissions of the Subprocessor that cause BigMarker to breach any of its obligations under this Addendum.
A list of BigMarker’s Subprocessors, including their functions and locations, is available at https://get.bigmarker.com/legal/subprocessors/ or such other website as BigMarker may designate (“Subprocessor Page”), and may be updated by BigMarker from time to time in accordance with this Addendum.
When any new Subprocessor is engaged, BigMarker will notify Customer of the engagement, which notice may be given by updating the Subprocessor Page and via a message through Customer’s BigMarker Workspace. BigMarker will give such notice at least ten (10) calendar days before the new Subprocessor Processes any Customer Data, except that if BigMarker reasonably believes engaging a new Subprocessor on an expedited basis is necessary to protect the confidentiality, integrity or availability of the Customer Data or avoid material disruption to the Services, BigMarker will give such notice as soon as reasonably practicable. If, within five (5) calendar days after such notice, Customer notifies BigMarker in writing that Customer objects to BigMarker’s appointment of a new Subprocessor based on reasonable data protection concerns, the parties will discuss such concerns in good faith and whether they can be resolved. If the parties are not able to mutually agree to a resolution of such concerns, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience.
Security Measures. BigMarker will implement and maintain technical and organizational security measures designed to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with BigMarker’s security standards referenced in the Agreement (“Security Measures”). BigMarker’s Information Security Policy can be found at https://get.bigmarker.com/information-security-policy/ or such other website as BigMarker may designate.
Customer Responsibility. Customer is responsible for reviewing the information made available by BigMarker relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Applicable Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease BigMarker’s obligations as compared to those reflected in such terms as of the Effective Date).
Customer agrees that, without limitation of BigMarker’s obligations under this Section 8, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.
Security Incident. Upon becoming aware of a confirmed Security Incident, BigMarker will notify Customer without undue delay unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of BigMarker’s legitimate needs to investigate or remediate the matter before providing notice will not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps BigMarker recommends Customer take to address the Security Incident. Without prejudice to BigMarker’s obligations under this Section 8.c., Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. BigMarker’s notification of or response to a Security Incident under this Section 8.c. will not be construed as an acknowledgement by BigMarker of any fault or liability with respect to the Security Incident.
The parties acknowledge that Customer must be able to assess BigMarker’s compliance with its obligations under Applicable Data Protection Law and this Addendum, insofar as BigMarker is acting as a processor on behalf of Customer.
BigMarker’s Audit Program. BigMarker uses external auditors to verify the adequacy of its security measures with respect to its processing of Customer Data. Such audits are performed at least once annually at BigMarker’s expense by independent third-party security professionals at BigMarker’s selection and result in the generation of a confidential audit report (“Audit Report”). A description of BigMarker’s certifications and standards for audit can be made available to Customer upon request.
Customer Audit. Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, BigMarker will make available to Customer a copy of BigMarker’s most recent Audit Report. Customer agrees that any audit rights granted by Applicable Data Protection Laws will be satisfied by these Audit Reports. To the extent that BigMarker’s provision of an Audit Report does not provide sufficient information for Customer to verify BigMarker’s compliance with this Addendum or Customer is required to respond to a regulatory authority audit, Customer agrees to a mutually agreed-upon audit plan with BigMarker that: (a) ensures the use of an independent third party; (b) provides notice to BigMarker in a timely fashion; (c) requests access only during business hours; (d) accepts billing to Customer at BigMarker’s then-current rates; (e) occurs no more than once annually; (f) restricts findings to only Customer Data relevant to Customer; and (g) obligates Customer, the the extent permitted by law or regulation, to keep confidential any information gathered that, by its nature, should be confidential.
BigMarker will provide reasonable cooperation to Customer in connection with any data protection impact assessment (at Customer’s expense only if such reasonable cooperation will require BigMarker to assign significant resources to that effort) or consultations with regulatory authorities that may be required in accordance with Applicable Data Protection Laws.
BigMarker will upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Applicable Data Protection Laws to respond to requests from individuals to exercise their rights under Applicable Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If BigMarker receives a request from a Data Subject in relation to their Customer Data, BigMarker will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
BigMarker will, within sixty (60) days after request by Customer following the termination or expiration of the Agreement, delete all Customer Data from BigMarker’s systems.
Notwithstanding the foregoing, Customer understands that BigMarker may retain Customer Data if required by law, and such data will remain subject to the requirements of this Addendum.
Processing in the United States. Customer acknowledges that, as of the Effective Date, BigMarker’s primary processing facilities are in the United States.
Jurisdiction Specific Terms. To the extent that BigMarker Processes Customer Data originating from and protected by Applicable Data Protection Laws in one of the Jurisdictions listed in Schedule 4 (Jurisdiction Specific Terms), then the terms specified therein with respect to the applicable jurisdiction(s) will apply in addition to the terms of this Addendum.
Cross Border Data Transfer Mechanism. To the extent that Customer’s use of the Services requires an onward transfer mechanism to lawfully transfer personal data from a jurisdiction (i.e., the European Economic Area (“EEA”), the UK, Switzerland or any other jurisdiction listed in Schedule 3) to BigMarker located outside of that jurisdiction (a “Transfer Mechanism”), the terms and conditions of Schedule 3 (Cross Border Transfer Mechanisms) will apply.
Nature and Purpose of the Processing. BigMarker will process Personal Data as necessary to provide the Services under the Agreement. BigMarker does not sell Customer Data (or end user information within such Customer Data) and does not share such end users’ information with third parties for compensation or for those third parties’ own business interests. BigMarker will process Customer Data as a processor in accordance with Customer’s instructions as outlined in Section 6.a (Customer Instructions) of this Addendum.
Processing Activities. Processing Activities. Customer Data will be subject to the following basic processing activities: the provision of Services, provided through BigMarker’s Platform, APIs, and CRM integrations, as applicable, that allow for BigMarker Customers to generate, integrate, manage and control their Customer Data. Usage Data will be subject to the following processing activities by BigMarker: BigMarker may use Usage Data to operate, improve and support the Services and for other lawful business practices, such as analytics, benchmarking and reporting.
Duration of the Processing. Prior to the termination of the Agreement, BigMarker will process stored Customer Data for the purpose of providing the Services until Customer elects to delete such Customer Data via the BigMarker Services or in accordance with the Agreement. Upon termination of the Agreement, BigMarker may retain, use and disclose Usage Data for the purposes set forth above in Section 2.b (Usage Data) of this Schedule 1, subject to the confidentiality obligations set forth in the Agreement.
Categories of Data Subjects. Customer’s end users.
Categories of Personal Data. The categories of Personal Data are such categories as Customer elects to collect from end users via the Services under the Agreement.
Sensitive Data or Special Categories of Data. Customers are prohibited from including sensitive data or special categories of data in Customer Data. xSensitive Data is not contained in Usage Data.
Where applicable, this Schedule 2 will serve as Annex II to the Standard Contractual Clauses. The following schedule provides more information regarding BigMarker’s technical and organizational security measures set forth below.
The full text of BigMarker’s technical and organizational security measures to protect Customer Data is available u.
Measures of pseudonymization and encryption of personal data
BigMarker maintains Customer Data in an encrypted format at rest using Advanced Encryption Standard and in transit using TLS.
Measures for ensuring ongoing confidentiality, integrity, availability and resiliance of processing systems and services
BigMarker's customer agreements contain strict confidentiality obligations. Additionally, BigMarker requires every downstream Subprocessor to sign confidentiality provisions that are substantially similar to those contained in BigMarker's customer agreements. The infrastructure for the BigMarker Services spans multiple fault-independent AWS availability zones in geographic regions physically separated from one another, supported by various tools and processes to maintain high availability of services.
Measures for ensuring the ability to restore availability and access topersonal data in a timely manner in the event of a physical or technical incident.
BigMarker performs regular backups of Customer Data, which is hosted in AWS data centers. Backups are retained redundantly across multiple availability zones and encrypted in transit and at rest using Advanced Encryption Standard (AES-256).
Processes for regular testing, assessing and evaluating the effectiveness oftechnical and organizational measures in order to ensure the security of processing
BigMarker maintains a risk-based assessment security program. The framework for BigMarker’s security program includes administrative, organizational, technical, and physical safeguards reasonably designed to protect the Services and confidentiality, integrity, and availability of Customer Data. BigMarker’s security program is intended to be appropriate to the nature of the Services and the size and complexity of BigMarker’s business operations. BigMarker has a separate and dedicated security team that manages BigMarker’s security program. This team facilitates and supports independent audits and assessments performed by third-parties to provide independent feedback on the operating effectiveness of the information security program.
Measures for user identification and authorization
BigMarker personnel are required to use unique user access credentials and passwords for authorization. BigMarker follows the principles of least privilege through role-based and time-based access models when provisioning system access. BigMarker personnel are authorized to access Customer Data based on their job function, role and responsibilities, and such access requires approval prior to access provisioning. Access is promptly removed upon role change or termination.
Measures for the protection of data during transmission
Customer Data is encrypted when in transit between Customer and BigMarker Services using TLS.
Measures for the protection of data during storage
Customer Data is stored encrypted using the Advanced Encryption Standard.
Measures for ensuring physical security of locations at which personal data are processed
BigMarker headquarters and office spaces have a physical security program that manages visitors, building entrances, CCTVs (closed circuit televisions), and overall office security. All employees, contractors, and visitors are required to wear identification badges.The Services operate on Amazon Web Services (“AWS”) and are protected by the security and environmental controls of Amazon. Detailed information about AWS security is available at https://aws.amazon.com/security/and http://aws.amazon.com/security/sharing-the-security-responsibility/. For AWS SOCReports, please see https://aws.amazon.com/compliance/soc-faqs/.
Measures for ensuring events logging
BigMarker monitors access to applications, tools, and resources that process or store Customer Data, including cloud services. Monitoring of security logs is centralized by the security team. Log activities are investigated when necessary and escalated appropriately.
Measures for ensuring systems configuration, including default configuration
BigMarker applies Secure Software Development Lifecycle (Secure SDLC) standards to perform numerous security-related activities for the Services across different phases of the product creation lifecycle from requirements gathering and product design all the way through product deployment. These activities include, but are not limited to, the performance of (a) internal security reviews before new Services are deployed; (b) bi-annual penetration testing by independent third parties; and (c) threat models for new Services to detect any potential security threats and vulnerabilities.
BigMarker adheres to a change management process to administer changes to the production environment for the Services, including changes to its underlying software, applications, and systems. Monitors are in place to notify the security team of changes made to critical infrastructure and services that do not adhere to the change management processes.
Measures for internal IT and IT security governance and management
BigMarker maintains a risk-based assessment security program. The framework for BigMarker’s security program includes administrative, organizational, technical, and physical safeguards reasonably designed to protect the Services and confidentiality, integrity, and availability of Customer Data. BigMarker’s security program is intended to be appropriate to the nature of the Services and the size and complexity of BigMarker’s business operations. BigMarker has a separate and dedicated Information Security team that manages BigMarker’s security program. This team facilitates and supports independent audits and assessments performed by third parties. BigMarker’s security framework is based on the ISO 27001 Information Security Management System and includes programs covering: Policies and Procedures, Asset Management, Access Management, Cryptography, Physical Security, Operations Security, Communications Security, Business Continuity Security, People Security, Product Security, Cloud and Network Infrastructure Security, Security Compliance, Third-Party Security, Vulnerability Management, and Security Monitoring and Incident Response. Security is managed at the highest levels of the company, with the Chief Trust and Security Officer meeting with executive management regularly to discuss issues and coordinate company-wide security initiatives. Information security policies and standards are reviewed and approved by management at least annually and are made available to all BigMarker employees for their reference.
Measures for certifications/assurance of processes and products
BigMarker conducts various third-party audits to attest to various frameworks including SOC 2 Type 2, and bi-annual application penetration testing.
Measures for ensuring data minimization
BigMarker Customers unilaterally determine what Customer Data they route through the BigMarker Services and how the Services are configured. As such, BigMarker operates on a shared responsibility model. BigMarker provides tools within the Services that gives Customers control over exactly what data enters the platform and enables Customers with the ability to block data at the Source level. Additionally, BigMarker has built in self-service functionality to the Services that allow Customers to delete Customer Data on demand.
Measures for ensuring data quality
BigMarker has a three-fold approach for ensuring data quality. These measures include: (i) unit testing to ensure the quality of logic used to make API calls, (ii) volume testing to ensure the code is able to scale, and (iii) daily end-to-end testing to ensure that the input values match expected values. BigMarker applies these measures across the board, both to ensure the quality of any Usage Data that BigMarker collects and to ensure that the BigMarker Platform is operating in accordance with the documentation.Each BigMarker Customer chooses what Customer Data they route through the BigMarker Services and how the Services are configured. As such, BigMarker operates on a shared responsibility model. BigMarker ensures that data quality is maintained from the time a Customer sends Customer Data into the Services and until that Customer Data leaves BigMarker to flow to a downstream destination.
Measures for ensuring limited data retention
BigMarker Customers unilaterally determine what Customer Data they route through the BigMarker Services and how the Services are configured. As such, BigMarker operates on a shared responsibility model. If a Customer is unable to delete Customer Data via the self-services functionality of the Services, then BigMarker deletes Customer Data upon the Customer's written request, within the timeframe specified in the Data Protection Addendum and in accordance with Applicable Data Protection Law.
Measures for ensuring accountability
BigMarker has adopted measures for ensuring accountability, such as implementing data protection policies across the business, sharing BigMarker's Information Security Policy, maintaining documentation of processing activities, recording and reporting Security Incidents involving Personal Data, and appointing a Data Protection Officer. Additionally, BigMarker conducts regular third-party audits to ensure compliance with our privacy and security standards.
Measures for allowing data portability and ensuring erasure
BigMarker's Customers have direct relationships with their end users and are responsible for responding to requests from their end users who wish to exercise their rights under Applicable Data Protection Laws. BigMarker has built-in self-service functionality to the Services that allow Customers to delete and suppress Customer Data, with product documentation available in its knowledge base. If a Customer is unable to use such self-service functionality, BigMarker specifies in the Data Protection Addendum that it will provide assistance to such Customer as may reasonably be require to comply with Customer's obligations under Applicable Data Protection Laws to respond to requests from individuals to exercise their rights under Applicable Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection). If BigMarker receives a request from a Data Subject in relation to their Customer Data, BigMarker will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
For transfers to [sub]-processors, also describe the specific technical and organizational measures to be taken by the [sub]-processor to be able to provide assistance to the controller and, for transfers from a processor to a [sub]-processor, to the data exporter
When BigMarker engages a sub-processor under this Addendum, BigMarker and the sub-processor enter into an agreement with data protection terms substantially similar to those contained herein. Each sub-processor agreement must ensure that BigMarker is able to meet its obligations to Customer. In addition to implementing technical and organizational measures to protect personal data, sub-processors must a) notify BigMarker in the event of a Security Incident so BigMarker may notify Customer; b) delete data when instructed by BigMarker in accordance with Customer’s instructions to BigMarker; c) not engage additional sub-processors without authorization; d) not change the location where data is processed; or e) process data in a manner which conflicts with Customer’s instructions to BigMarker.
1. Definitions
(a) “Standard Contractual Clauses” means, depending on the circumstances unique to any particular Customer, any of the following:
(i) UK Standard Contractual Clauses; and
(ii) 2021 Standard Contractual Clauses
(b) “UK Standard Contractual Clauses” means:
(i) The Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018: International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, VERSION B1.0, in force 21 March 2022.
(c) "2021 Standard Contractual Clauses" means the Standard Contractual Clauses approved by the European Commission in decision 2021/914.
2. UK Standard Contractual Clauses. For data transfers from the United Kingdom that are subject to the UK Standard Contractual Clauses, the UK Standard Contractual Clauses will be deemed entered into (and incorporated into this Addendum by reference) and completed as set forth in Schedule 5.
3. The 2021 Standard Contractual Clauses. For data transfers from the European Economic Area that are subject to the 2021 Standard Contractual Clauses, the 2021 Standard Contractual Clauses will apply in the following manner:
(a) Module One (Controller to Controller) will apply where Customer is a controller of Usage Data and BigMarker is a controller of Usage Data.
(b) Module Two (Controller to Processor) will apply where Customer is a controller of Customer Data and BigMarker is a processor of Customer Data;
(c) Module Three (Processor to Processor) will apply where Customer is a processor of Customer Data and BigMarker is a sub-processor of Customer Data;
(d) For each Module, where applicable: (i) in Clause 7, the option docking clause will not apply; (ii) in Clause 9, Option 2 will apply, and the time period for prior notice of sub-processor changes will be as set forth in Section 7 (Subprocessing) of this Addendum; (iii) in Clause 11, the optional language will not apply; (iv) in Clause 17 (Option 1), the 2021 Standard Contractual Clauses will be governed by Irish law. (v) in Clause 18(b), disputes will be resolved before the courts of Ireland; (vi) In Annex I, Part A:
Data Exporter: Customer and authorized affiliates of Customer.
Contact Details: Customer’s account owner email address, or to the email address(es) for which Customer elects to receive privacy communications.
Data Exporter Role: The Data Exporter’s role is outlined in Section 4 of this Addendum.
Signature & Date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Data Importer: BigMarker, inc.
Contact Details: BigMarker Privacy Team - privacy@bigmarker.com
Data Importer Role: The Data Importer’s role is outlined in Section 4 of this Addendum.
Signature & Date: By entering into the Agreement, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
(vii) In Annex I, Part B: The categories of data subjects are described in Schedule 1, Section 4. The sensitive data transferred is described in Schedule 1, Section 6. The frequency of the transfer is a continuous basis for the duration of the Agreement. The nature of the processing is described in Schedule 1, Section 1. The purpose of the processing is described in Schedule 1, Section 1. The period of the processing is described in Schedule 1, Section 3. For transfers to sub-processors, the subject matter, nature, and duration of the processing is outlined at https://get.bigmarker.com/legal/subprocessors/ or other web page as published by BigMarker from time to time and available upon request. In Annex I, Part C: The Irish Data Protection Commission will be the competent supervisory authority.Schedule 2 serves as Annex II of the Standard Contractual Clauses.
4. To the extent there is any conflict between the Standard Contractual Clauses and any other terms in this Addendum, including Schedule 4 (Jurisdiction Specific Terms), the provisions of the Standard Contractual Clauses will prevail.
5. The full text of the Standard Contractual Clauses is set forth in Schedule 5 (Standard Contractual Clauses) of this Addendum.
California
(a) The definition of “Applicable Data Protection Law” includes the California Consumer Privacy Act (CCPA).
(b) The terms “business”, “commercial purpose”, “service provider”, “sell” and “personal information” have the meanings given in the CCPA.
(c) With respect to Customer Data, BigMarker is a service provider under the CCPA.
(d) BigMarker will not (i) sell Customer Data; (ii) retain, use or disclose any Customer Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Data for a commercial purpose other than providing the Services; or (iii) retain, use or disclose the Customer Data outside of the direct business relationship between BigMarker and Customer.
(e) The parties acknowledge and agree that the Processing of Customer Data authorized by Customer’s instructions described in Section 6 of this Addendum is integral to and encompassed by BigMarker’s provision of the Services and the direct business relationship between the parties.
(f) Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, the parties acknowledge and agree that BigMarker’s access to Customer Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.
EEA
(a) The definition of “Applicable Data Protection Laws” includes the General Data Protection Regulation (EU 2016/679)(“GDPR”).
(b) When BigMarker engages a Subprocessor under Section 7 (Subprocessing), it will:
(i) require any appointed Subproessor to protect Customer Data to the standard required by Applicable Data Protection Laws, such as including the same data protection obligations referred to in Article 28(3) of the GDPR, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR; and
(ii) require any appointed Subprocessor to agree in writing to only process data in a country that the European Union has declared to have an “adequate” level of protection; or to only process data on terms equivalent to the Standard Contractual Clauses.
(c) GDPR Penalties. Notwithstanding anything to the contrary in this Addendum or in the Agreement (including, without limitation, either party’s indemnification obligations), neither party will be responsible for any GDPR fines issued or levied under Article 83 of the GDPR against the other party by a regulatory authority or governmental body in connection with such other party’s violation of the GDPR.
Switzerland
(a) The definition of “Applicable Data Protection Laws” includes the Swiss Federal Act on Data Protection.
(b) When BigMarker engages a Subprocessor under Section 7 (Subprocessing), it will
(i) require any appointed Subproessor to protect Customer Data to the standard required by Applicable Data Protection Laws, such as including the same data protection obligations referred to in Article 28(3) of the GDPR, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR; and
(ii) require any appointed Subprocessor to agree in writing to only process data in a country that the European Union has declared to have an “adequate” level of protection; or to only process data on terms equivalent to the Standard Contractual Clauses.
United Kingdom
(a) References in this Addendum to GDPR will to that extent be deemed to be references to the corresponding laws of the United Kingdom (including the UK GDPR and Data Protection Act 2018).
(b) When BigMarker engages a Subprocessor under Section 7 (Subprocessing), it will:
(i) require any appointed Subproessor to protect Customer Data to the standard required by Applicable Data Protection Laws, such as including the same data protection obligations referred to in Article 28(3) of the GDPR, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR; and
(ii) require any appointed Subprocessor to agree in writing to only process data in a country that the European Union has declared to have an “adequate” level of protection; or to only process data on terms equivalent to the Standard Contractual Clauses.
STANDARD CONTRACTUAL CLAUSES
UK Controller to Processor SCCs
European Commission Decision C( 2 0 1 0 ) 5 9 3
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Data transfer agreement between
The entity signing these clauses as the Data Exporter and who has a valid agreement with data importer for the provision of services,
hereafter “data exporter”
And
BIGMARKER, INC.,
223 W. Erie Street, 4th Floor
Chicago, IL 60654
email: privacy@bigmarker.com
hereinafter “data importer;”
each a “party”; together “the parties”.
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix 1.
Data exporter
The data exporter is the Customer and the user of the Services.
Data importer
The data importer is BigMarker, Inc.
Data subjects
The personal data transferred concern the following categories of data subjects:
As set forth in Section 4 (Categories of Data Subjects) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Categories of data
The personal data transferred concern the following categories of data (please specify):
Customer Data as set forth in Section 5 (Categories of Personal Data) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
As set forth in Section 6 (Sensitive Data or Special Categories of Data) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
As set forth in Section 2 (Processing Activities) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix 2 forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or documentation/legislation attached):
See Security Measures, which can be found at https://get.bigmarker.com/information-security-policy/ or such other website as BigMarker may designate.
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ANNEX A TO THE STANDARD CONTRACTUAL CLAUSES
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when: (a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and (ii) the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties. or (b) where otherwise provided by the law of the data exporter.
ANNEX B TO THE STANDARD CONTRACTUAL CLAUSES
DESCRIPTION OF THE TRANSFER
This Annex B forms part of the Standard Contractual Clauses and must be completed and signed by the parties.
Data Subjects
The personal data transferred concern the following categories of data subjects: Usage Data as set forth in Section 4 (Categories of Data Subjects) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Purposes of the Transfer(s)
The transfer is made for the following purposes: As set forth in Section 1 (Nature and Purpose of the Processing) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Categories of data
The personal data transferred concern the following categories of data: Usage Data as set forth in Section 1 (Nature and Purpose of the Processing) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Recipients
The personal data transferred may only be disclosed to the following recipients or categories of recipients:
1. Employees, agents, affiliates, advisors and independent contractors of data importer with a reasonable business purpose for needing such personal data;
2. Vendors of data importer that, in their performance of their obligations to data importer, must process such personal data acting on behalf of and according to instructions from data importer; and
3. Any person (natural or legal) or organization to whom data importer may be required by applicable law or regulation to disclose personal data, including law enforcement authorities, central and local government.
Sensitive data
The personal data transferred concern the following categories of sensitive data:As set forth in Section 6 (Sensitive Data or Special Categories of Data) of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Data protection registration of the data exporter
______________________
2021 Standard Contractual Clauses
ANNEX
to the
COMMISSION IMPLEMENTING DECISION
on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council
ANNEX
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.
(b) The Parties: (i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and (ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;Clause 8 - Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);Clause 13;Clause 15.1(c), (d) and (e);Clause 16(e);Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.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
(omitted)
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
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(c) 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.
(d) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the 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.
(e) 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 Union4 (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if: (i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer; (ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question; (iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or (iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
MODULE THREE: Transfer processor to processor
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 exporter5.
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
(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.
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 Union6 (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:
(a) 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;
(b) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
(c) 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
(d) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter 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.
Clause 9
Use of sub-processors
MODULE TWO: Transfer controller to processor
(a) OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors as specified in Section 7.2 (Current Sub-processors and Notification of Sub-processor Changes) of this Addendum, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b)Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.8 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
MODULE THREE: Transfer processor to processor
(a) OPTION 2: GENERAL WRITTEN AUTHORISATION 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 as specified in Section 7.2 (Current Sub-processors and Notification of Sub-processor Changes) of this Addendum, 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).
(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.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.
(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.
Clause 10
Data subject rights
MODULE TWO: Transfer controller to processor
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
MODULE THREE: Transfer processor to processor
(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.
(c) 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.
Clause 11
Redress
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.
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) 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.
(b) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(c) 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.
(d) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(e) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards12;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three: , if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
[For Module Three: The data exporter shall forward the notification to the controller.]
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) [For Modules One, Two and Three: Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
OPTION 1: These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Clause 18
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of 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.
APPENDIX
ANNEX I
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Data exporter(s): Customer
Address: Customer’s address as per the Agreement
Contact person’s name, position and contact details: Customer’s account owner email address, or to the email address(es) for which Customer elects to receive privacy communications.
Role (controller/processor): The Data Exporter’s role is set forth in Section 4 (Relationship of the Parties) of this Addendum
Data importer(s): BigMarker, Inc.
Address: 223 W. Erie Street, 4th Floor, Chicago, IL 60654
Contact details: Privacy Team - privacy@bigmarker.com
Role (controller/processor): The Data Importer’s role is set forth in Section 4 (Relationship of the Parties) of this Addendum
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Categories of data subjects whose personal data is transferred
As described in Section 4 of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Categories of personal data transferred
As described in Section 5 of Schedule 1 (Subject Matter & Details of Processing) of this 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.
As described in Section 6 of Schedule 1 (Subject Matter & Details of Processing) of this Addendum The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).Continuous basis for the duration of the Agreement Nature of the processing
As described in Section 1 of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
Purpose(s) of the data transfer and further processing
As described in Section 1 of Schedule 1 (Subject Matter & Details of Processing) of this AddendumThe period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that periodAs described in Section 3 of Schedule 1 (Subject Matter & Details of Processing) of this Addendum
For transfers to (sub-)processors, also specify subject matter, nature and duration of the processingAs set forth at https://get.bigmarker.com/legal/subprocessors/
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Identify the competent supervisory authority/ies in accordance with Clause 13
The Irish Data Protection Commission
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.As set forth in Schedule 2 (Technical & Organizational Security Measures) of this Addendum
ANNEX III – LIST OF SUB-PROCESSORS
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
The controller has authorised the use of the sub-processors set forth at https://get.bigmarker.com/legal/subprocessors/ or such other website as BigMarker may designate.
