Effective October 25, 2022

Ping Identity Corporation (“Ping Identity”) is committed to protecting the privacy and security of the Personal Data that it processes for its customers. This Data Processing Addendum (the “DPA”) explains Ping Identity’s privacy and security commitments and enables Ping Identity to demonstrate compliance with applicable Privacy Laws.

This DPA relates to the processing by Ping Identity of Personal Data provided by [insert Customer name] (“Customer”) under the applicable subscription or license agreement and ordering documentation between Customer and Ping Identity (collectively, the “Agreement”). This DPA is incorporated into and forms part of, and is subject to the terms and conditions of, the Agreement. If an Affiliate of Customer has executed an ordering document with Ping Identity but is not the original signatory to the Agreement, this DPA is an addendum to and forms part of such ordering documentation. Any capitalized terms used in this DPA and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.Ping Identity Corporation (“Ping Identity”) is committed to protecting the privacy and security of the Personal Data that it processes for its customers. This Data Processing Addendum (the “DPA”) explains Ping Identity’s privacy and security commitments and enables Ping Identity to demonstrate compliance with applicable Privacy Laws.

1.     Definitions

        (a)    “CA Privacy Law” means (collectively) the California Consumer Privacy Act, the California Privacy Rights Act, and all issued implementing regulations, as and when effective, and any other applicable California state privacy laws.

        (b)    “Data Subject Request” means any request by an individual (or by another person acting on behalf of an individual) to exercise a right under any Privacy Law, or any other complaint or inquiry or similar communication about the Processing of the individual’s Personal Data.

        (c)    “EEA Personal Data” means that subset of Personal Data consisting of personal data (as defined in GDPR) pertaining to residents of the European Economic Area (EEA), Switzerland, and the United Kingdom.

        (d)    “GDPR” means Regulation (EU) 2016/679, the General Data Protection Regulation, and all issued implementing regulations, as and when effective.

        (e)     “Personal Data” or “Personal Information” means all data that is Processed by Ping Identity in connection with the Services and (i) identifies or can be used to identify, contact or locate a natural person, (ii) pertains in any way to an identified natural person, or (iii) falls within any definition of “personal data” or “personal information” under any applicable Privacy Law. Personal Data includes obvious identifiers (such as names, addresses, email addresses, phone numbers and identification numbers) as well as biometric data, and any information about an individual’s computer or mobile device or technology usage, including (for example) IP address and other unique device identifiers.

        (f)    “Privacy Laws” means all applicable laws that regulate the Processing of Personal Data. In particular, Privacy Laws may include (as applicable) the CA Privacy Law, the GDPR, the UK GDPR, and other applicable laws that specify privacy, security, or security breach notification obligations that affect the Personal Data Processed in the provision of the Services by Ping Identity.

        (g)    “Processing” and its correlative terms means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, compilation, use, disclosure, duplication, organization, storage, alteration, Transfer, transmission, combination, redaction, erasure, or destruction.

        (h)     “Restricted Transfer” means any Transfer where the applicable Privacy Law requires the parties to demonstrate adequate protection using a contractual instrument or other means, including (for example) a cross-border transfer or cross-border disclosure to a recipient in a country that does not provide adequate protection for the data. Restricted Transfers do not include Transfers to recipients in countries whose data protection regimes have been declared adequate by relevant data protection authorities or which are otherwise not restricted.

        (i)     “Security Breach” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data Processed by Ping Identity or its Subprocessors.“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

        (j)    “Services” means all services that the Customer requests Ping Identity to perform under the Agreement that involves Processing of Personal Data.

        (k)     “Standard Contractual Clauses” means the contract terms set forth in the annex to the European Commission’s decision 2021/914 of 4 June 2021 containing Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679.

        (l)       “Subprocessor” means any third party (including an Affiliate of Ping Identity) that provides any services to Ping Identity and that may have access to any unencrypted Personal Data.

        (m)    “Transfer” means to disclose or otherwise make the Personal Data available to a third party (including to any Affiliate or Subprocessor of Ping Identity), either by physical movement of the Personal Data to such third party or by enabling access to the Personal Data by other means.

        (n)     ​​“UK GDPR” means the GDPR as it applies in UK domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018.

2.     General Obligations.

        (a)    Each party must use reasonable efforts to stay informed of the legal and regulatory requirements for its applicable responsibilities under this DPA. Ping Identity will comply with those obligations applicable to it as a “data processor” or “service provider,” and Customer will comply with those obligations applicable to it as a “data controller” (each as defined in the GDPR and similar Privacy Laws). Ping Identity will only Process Personal Data for the performance of the Services pursuant to the Agreement and in accordance with Customer’s documented instructions as reasonably contemplated by the Agreement. This DPA, the Agreement, and Customer’s use of the Service’s features and functionality, are Customer’s complete set of instructions to Ping Identity in relation to the processing of Personal Data. Ping Identity will promptly notify Customer if, in its opinion, the instructions given by Customer for Processing violate any Privacy Law; provided, however, that Ping Identity has no independent obligation to verify that the Processing complies with any specific Privacy Law, as it is entitled to rely on Customer’s instructions.

        (b)    Notwithstanding anything in the Agreement or this DPA to the contrary and as permitted by Privacy Law, Customer authorizes Ping Identity to further Process Personal Data for the following limited internal business purposes: (i) detecting security incidents, and protecting against malicious, deceptive, fraudulent, or illegal activity; (ii) debugging to identify and repair errors that impair intended functionality of the Products and other activities needed to maintain the quality and/or safety of the products; and (iii) internal operational activities such as responding to data subject requests, making back-ups as part of disaster recovery/business continuity programs, confirming usage quantities, and processing required for legal or regulatory compliance. When engaged in further Processing, Ping Identity is acting as a data controller for the limited purposes of engaging in the Processing activity (or as a “contractor” Processing the data for a business purpose under the CA Privacy Law) and subject to all obligations of any applicable Privacy Laws with respect to this Processing.

        (c)    Notwithstanding anything in the Agreement or this DPA to the contrary and as permitted by Privacy Law, Ping Identity may further process Personal Data as needed to de-identify it and aggregate it with other customer data to create anonymized aggregated datasets for internal operational purposes such as research, product development, and analytics.  To the extent these sets contain any indirect identifiers or continue to be regulated by the Privacy Laws, Ping Identity will comply with provisions of applicable Privacy Law and continue to handle the data in accordance with this DPA.

        (d)    Ping Identity shall promptly inform Customer in writing: (i) if it cannot comply with any material term of this DPA (if this occurs, Ping Identity shall use reasonable efforts to remedy the non-compliance, and Customer shall be entitled to terminate Ping Identity’s further Processing of Personal Data (which may require Customer to cease all use of the Services)); (ii) of any request for access to any Personal Data received from an individual who is (or claims to be) the subject of the data; or (iii) of any request for access to any Personal Data received by Ping Identity from any government official (including any data protection agency or law enforcement agency) unless it is explicitly prohibited by law from notifying Customer of the request. Ping Identity understands that it is not authorized to respond to these requests, unless explicitly authorized by Customer or the response is legally required under law, a subpoena or similar legal document issued by a government agency that compels disclosure by Ping Identity.

        (e)    Ping Identity shall reasonably cooperate with Customer and with its Affiliates and representatives at Customer’s expense in responding to Data Subject Requests and/or regulatory inquiries as needed for Customer to demonstrate compliance with the Privacy Laws applicable to it and to respect individuals’ rights under such Privacy Laws.  As required by Privacy Laws, Ping Identity will also reasonably assist Customer with any data protection impact assessments and prior consultations with regulators.

        (f)     Customer shall be responsible for ensuring that it has, and will continue to have, the right to transfer, or provide access to, Personal Data to Ping Identity for Processing as set forth herein. If any authorizations or consents of Data Subjects are required for such Processing of Personal Data by Ping Identity, Customer shall be required to obtain any such consents directly from the Data Subjects. Customer represents and warrants that it will not transmit or expose to Ping Identity any (i) protected health information (as that term is used in the Health Insurance Portability and Accountability Act of 1996 (HIPAA)); (ii) cardholder data (as regulated by the Payment Card Industry Security Standards Council); or (iii)  Personal Data that is not able to be Processed as set forth herein in compliance with applicable Privacy Laws, in connection with the Services or otherwise under this Agreement.

3.      Specific Compliance Requirements. 

        To the extent applicable:

        (a)    Ping Identity certifies that it complies with the CA Privacy Law. Ping Identity shall not (i) sell Personal Information, (ii) retain, use or disclose Personal Information other than as specified in the Agreement, as needed to perform the Services or for appropriate Business Purposes (as defined in and permitted by the CA Privacy Law), or (iii) retain, use or disclose Personal Information outside of its direct business relationship with Customer.

        (b)    If Personal Data will include EEA Personal Data, Ping Identity and Customer shall provide adequate protection for the EEA Personal Data. Each party shall comply with the provisions of GDPR and other Privacy Laws applicable to it, as a “controller” or a “processor” (as defined in GDPR). For any Restricted Transfers of EEA Personal Data, the parties shall document adequate protection for the EEA Personal Data using an approved data transfer mechanism in accordance with Section 5 below.

4.     Data Access.

Prior to allowing any employee or contingent worker to Process any Personal Data, Ping Identity shall (i) conduct an appropriate background investigation of the individual upon commencement of employment as permitted by law or contractually require the contingent worker’s employer to conduct such background check, (ii) require the individual to execute an enforceable confidentiality agreement (or be subject to a statutory or professional obligation of confidentiality), and (iii) provide the individual with appropriate privacy and security training. 

5.     Data Transfers and Subprocessors.

        (a)     Ping Identity shall only Transfer Personal Data as authorized by Customer and permitted by applicable Privacy Laws.  As needed to provide the Services (and for any authorized further Processing) Customer authorizes Ping Identity to make routine Transfers of Personal Data in the normal course of business on its corporate systems to itself in other countries and to its Affiliates using intercompany contracts containing Standard Contractual Clauses or such other adequacy mechanism elected by Ping Identity and permitted by Privacy Laws.

        (b)    Ping Identity shall not Transfer the Personal Data to any Subprocessors unless it has been authorized by Customer. By executing this DPA, Customer provides a general authorization for Transfers to those Subprocessors listed at https://www.pingidentity.com/en/legal/data-supplement.html (as may be amended by Ping Identity from time to time as follows). Ping Identity may not transfer Personal Data to any other Subprocessor without providing prior written notice to Customer via https://www.pingidentity.com/sub-processors (and Customer may subscribe to receive updates from such website); provided, however, that Customer will have thirty (30) days to reasonably object that such change causes Customer to be in violation of Privacy Laws. In the event that Customer has not provided an objection to such changes within thirty (30) days, Customer will be deemed to have waived its right to object and to have consented to the use of the new or alternative Subprocessor. Notwithstanding the foregoing, where a sudden replacement or supplement of a Subprocessor is required by Ping Identity to continue providing the Services (such as if a third party abruptly discontinues services to Ping Identity), Ping Identity may, in lieu of advance notice, inform Customer of the new Subprocessor as soon as practicable and using the same notice procedures as set forth above, following which Customer may raise reasonable objections as set forth above. In the event that Customer reasonably objects to such change, Ping Identity shall, in its sole discretion, use commercially reasonable efforts to (1) offer an alternative to provide the Service to Customer; (2) take the corrective steps requested by Customer in its objection and proceed to use the new Subprocessor; or (3) cancel its plans to use the Subprocessor. If Ping Identity is unable or unwilling to achieve either (1) through (3) in its sole discretion and the objection has not been resolved to the mutual satisfaction of the parties within thirty (30) days after Ping Identity’s receipt of the objection, Customer may, as its sole and exclusive remedy, terminate its applicable subscriptions from Ping Identity with respect only to those aspects of the Service which cannot be provided by Ping Identity without the use of the new Subprocessor.  In such event, Ping Identity shall refund Customer any unused, prepaid Fees for the applicable Service covering the remainder of the subscription term after the date of termination.

        (c)     Ping Identity shall: (i) conduct adequate due diligence on each Subprocessor to ensure that it is capable of providing the level of protection for Personal Data as is required by this DPA; (ii) enter into a written contract with the Subprocessor that obligates the Subprocessor to protect the information as required by this DPA; and (iii) remain primarily liable to Customer for the acts, errors and omissions of the Subprocessor, as if they were Ping Identity's own acts, errors and omissions. All Restricted Transfers of Personal Data by Ping Identity to the Subprocessors are authorized using an approved mechanism.

        (d)    With respect to Ping Identity’s hosted service, Customer may select the data center(s) location from those locations offered by Supplier in which Personal Data shall be stored. Personal Data received through the Services may be transferred to, allowed to be accessed by, or otherwise Processed by Ping Identity’s personnel or the Subprocessors. Personal Data may be transferred to personnel of Ping Identity located in the countries set forth at https://www.pingidentity.com/data-supplement in the course of performing the Services. Ping Identity will notify Customer if the foregoing countries change via https://www.pingidentity.com/sub-processors (and Customer may subscribe to receive updates from such website). Notwithstanding the foregoing, with the exception of Personal Data processed through the hosted service, certain Personal Data may be stored by Ping Identity or its Subprocessors in the U.S. for operational purposes. In the event that the foregoing countries to which Personal Data may be transferred is changed, the parties shall use good faith efforts to execute additional instruments as needed to comply with the applicable Privacy Laws. 

        (e)     The parties agree that: (i) to the extent that there are Restricted Transfers subject to the GDPR, the Standard Contractual Clauses (Module 2) attached hereto as Schedule 1 shall govern the Transfers; (ii) to the extent that there are Restricted Transfers subject to the UK General Data Protection Regulation, the Standard Contractual Clauses attached as Schedule 1 as modified by the International Data Transfer Addendum to the Standard Contractual Clauses attached hereto as Schedule 2 shall govern the Transfers; and (iii) to the extent that there are Restricted Transfers subject to the Swiss Federal Act on Data Protection (FADP), Standard Contractual Clauses attached as Schedule 1 below shall govern the Transfers.  The parties adopt the GDPR standard for Swiss data and agree that references to “GDPR” in the Standard Contractual Clauses shall be understood to also be references to the FADP and interpreted to permit data subjects in Switzerland to seek redress for their rights in Switzerland. Additionally, the Standard Contractual Clauses are understood to protect legal entities in Switzerland as provided by Swiss law until applicable revisions to the FADP come into force.  

        (f)    If a supervisory authority or court determines that the Transfer mechanism used herein is no longer an appropriate basis for Restricted Transfers, Ping Identity and Customer shall promptly use reasonable efforts to take all steps necessary to demonstrate adequate protection for the impacted information, using another approved mechanism or instrument.  If permitted by law, the parties agree that the terms of such new or additional mechanism or instrument will be automatically incorporated by reference into this DPA upon Ping Identity’s circulation of an addendum or amendment to this DPA containing the required terms. 

6.     Information Security Requirements.

        (a)    Ping Identity has implemented and documented appropriate administrative, technical and physical measures to protect Personal Data against accidental or unlawful destruction, alteration, unauthorized disclosure or access as described in more detail in Ping Identity’s Security Exhibit, a copy of which is posted at https://www.pingidentity.com/security-exhibit.

        (b)    Ping Identity has implemented and documented appropriate business continuity and disaster recovery plans to enable it to continue or resume providing Services (including restoring access to the Personal Data) in a timely manner after a disruptive event. Upon request, Ping Identity will provide the table of contents to its written business continuity and disaster recovery plans to Customer.   

        (c)    Ping Identity uses external auditors to verify the adequacy of its security measures with respect to its processing of Personal Data. Such audits are conducted at least annually, are performed at Ping Identity’s expense by independent third-party audit professionals at Ping Identity’s selection, and result in a confidential audit report. A list of Ping Identity’s certifications and/or standards for audit as of the date of this DPA can be found at https://www.pingidentity.com/security-exhibit. Upon request, Ping Identity shall provide Customer with reasonable information about Ping Identity’s information security program. All such information is Confidential Information of Ping Identity. 

       (d)    Where required by law, Ping Identity will submit its offices for a reasonable audit, not more than once per year, during Ping Identity’s reasonable business hours, which shall be carried out by Customer (or by a qualified independent auditor) at Customer’s expense in a mutually-agreeable manner (designed to validate Ping Identity’s controls against an established industry standard such as ISO 27001). Any independent auditors utilized shall be required to enter into a confidentiality agreement with Ping Identity.  Ping Identity shall also cooperate with any audits conducted by any regulatory agency that has authority over Customer as needed to comply with applicable law. Notwithstanding the foregoing, Ping Identity and Customer will first use all reasonable efforts to satisfy any such request for an audit  through (i) responses to a reasonable information security-related questionnaire; (ii) copies of relevant third party audits, reviews, tests, or certifications of Ping Identity’s systems or processes, including its most recently completed SOC-2 Type II audit report, its public ISO 27001 certificate and non-public Statement of Applicability; (iii) a summary of Ping Identity’s operational practices related to data protection and security; and (iv) making Ping Identity’s personnel reasonably available for security-related discussions.  If the parties are unable to satisfy the requests with such  additional documentation or discussions, then the Parties will work together to allow for the above audit as required by law. If any such audit reveals material gaps or weaknesses in Ping Identity’s security program, Customer shall be entitled to terminate Ping Identity’s further Processing of Personal Data until such issues are resolved (which may require Customer to cease all use of the Services). For the avoidance of doubt, Customer understands that due to the third-party hosting and multi-tenant nature of the Services, Ping Identity cannot grant access to the premises, facilities, or records of any Subprocessor or Ping Identity’s production or non-production systems, source code, or anything that could expose confidential information of other customers of Ping Identity. Customer shall reimburse Ping Identity for any time expended by Ping Identity in fulfilling any such requests set forth in this section at Ping Identity’s then-current professional services rates, which shall be made available to Customer upon request.

        (e)    Ping Identity will promptly investigate all allegations of unauthorized access to, use or disclosure of the Personal Data. Ping Identity will notify Customer within 48 hours upon determining that a Security Breach has occurred. This notification will be made via email to the address specified in the Appendix. Ping Identity will provide Customer with all information in its possession about the Security Breach reasonably needed by Customer to assess its incident response obligations. 

        (f)    When Personal Data is no longer necessary for the purposes set forth in the Agreement or this DPA or at an earlier time as Customer requests in writing,  Ping Identity will either: (i) provide a copy of the Personal Data to Customer, and/or (ii) purge, delete and destroy the Personal Data, except for backups and monitoring data which will be deleted per Ping Identity’s data retention policy. If Ping Identity is required by applicable law to retain any Personal Data, Ping Identity shall (i) continue to maintain the confidentiality and security of the Personal Data in accordance with this DPA, (ii) securely delete or destroy the Personal Data when the legal retention period has expired, and (iii) not actively Process the Personal Data other than as needed for to comply with law.

7.    Limitation of Liability.

Each party’s liability arising out of or related to this DPA, including its exhibits and attachments, whether in contract, tort or under any other theory of liability, is subject to any limitation of liability as set forth in the Agreement and any reference to such limitation of liability of a party means the aggregate liability of the party and its Affiliates under the Agreement and this DPA, including its exhibits and attachments, together. 

8.    Miscellaneous.

        (a) Order of precedence. Except as specifically set forth in this DPA, the terms and provisions of the underlying Agreement shall remain unmodified and in full force and effect. In the event of a conflict between the terms and conditions of Schedules 1 and 2, and this DPA and the Schedules shall control.

        (b) Duration of this DPA. This DPA shall remain in effect until, and automatically expire upon, deletion of all Personal Data by Ping Identity as described in this DPA.

        (c) Amendments. If an amendment to this DPA is required in order to comply with applicable Data Protection Laws and Regulations, both parties will work together in good faith to promptly execute a mutually agreeable amendment to this DPA reflecting the requirements set out by the applicable Data Protection Laws and Regulations. 

Appendix

This Appendix also serves as the Appendix to the Standard Contractual Clauses incorporated as Schedule 1, if those are used to authorize cross-border data transfers as indicated below.

ANNEX I

A. LIST OF PARTIES    

        Customer information is given above.

        Customer acts as the data exporter/controller.

            Ping Identity Corporation 
            1001 17th Street, Suite 100
            Denver, CO 80202

        Ping Identity acts as the data importer/processor, for itself and its Affiliates, as applicable.

        Additional Company Information

       Ping Identity Privacy Office: privacy@pingidentity.com

B. DESCRIPTION OF THE PROCESSING AND TRANSFER

Ping Identity provides enterprise identity and access management (IAM) products and related security solutions. Our products enable customers to provide secure access to their networks and systems to their employees and customers. Our products range from basic single sign-on solutions to fully orchestrated risk-based, adaptive authentication workflows that support different IAM use cases, such as fraud detection, identity proofing, and authorization. 

Categories of data subjects whose personal data are processed and/or transferred

• Customer’s employees, customers, and other persons whose information is processed by Ping Identity in the course of providing the IAM services to the Customer.  

Categories of personal data are processed and/or transferred

• Contact information (such as name, address, email address)

• Professional details (such as employer, title, position)

• IAM data and technical information (such as access privileges and customer access criteria, access log information)

• Online and technical data (IP address, device ID and related data, connection data)

• For the PingOne Fraud Service: Behavioral characteristics (such as keystroke dynamics) which are used to detect bots and not used for individual identification.

• For the PingOne DaVinci Service: The orchestration platform allows customers to process and store additional categories of data; these are determined by the customer and are not required by Ping Identity. 

Sensitive data processed and/or transferred (if applicable)

Ping Identity’s IAM products do not require sensitive data, but some products provide customers and end users with the capability to process biometric data for authentication and multi-factor authentication.

• For the PingID Service: The Service itself does not process biometric data but does allow users to authenticate using the biometric capabilities of their devices (such as TouchID).  

• For the PingOne Verify Service: If implemented by customer, biometric data (facial recognition) is processed for authentication. The user uploads a photo to enable this functionality. 

• For the PingOne DaVinci Service: The orchestration platform allows customers to process and store additional categories of data, which may include special categories of data; these are determined by the customer and are not required by Ping Identity.   

Nature of the processing

• Personal data is processed for identity and access management in connection with the services set forth on the applicable Order Form.  Ping Identity may further Process Personal Information for the following closely-related purposes: (i) detecting security incidents, and protecting against malicious, deceptive, fraudulent, or illegal activity; (ii) debugging to identify and repair errors that impair intended functionality of the Products and other activities needed to maintain the quality and/or safety of the products; and (iii) internal operational activities such as responding to data subject requests, making back-ups as part of disaster recovery/business continuity programs, confirming usage quantities, and processing required for legal or regulatory compliance.  

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

• Personal Data will be retained by the data importer in accordance with its data retention policy and no longer than necessary for the purposes set forth in the Agreement or  until such earlier time as the data exporter requests deletion in writing.

Purpose(s) of the data transfer and further processing

• To enable Ping Identity to provide the IAM products and services per the Agreement

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

• Continuous

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

• See Annex 3 below.

C. COMPETENT SUPERVISORY AUTHORITY FOR RESTRICTED TRANSFERS (if applicable)

ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

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. 

            Ping Identity’s information security program is described in the Security Exhibit available here:  

            https://www.pingidentity.com/security-exhibit.

ANNEX III – LIST OF SUBPROCESSORS

        Customer has authorised Ping Identity’s use of the subprocessors listed at:

        https://www.pingidentity.com/sub-processors.

Schedule 1

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) 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

(a)         Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i)     Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii)    Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e)

(iii)   Clause 9 - Clause 9(a), (c), (d) and (e);

(iv)   Clause 12 - Clause 12(a), (d) and (f);

(v)    Clause 13;

(vi)   Clause 15.1(c), (d) and (e);

(vii)  Clause 16(e);

(viii) Clause 18 - Clause 18(a) and (b)

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a)        Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)        These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)        These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

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

The option under clause 7 shall not apply.

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.

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).

8.6 Security of processing

(a)        The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in 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 personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c)        In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d)        The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

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

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (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.

Clause 9

Use of sub-processors

(a)        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 at least at least thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b)        Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c)        The data importer shall provide, at the data exporter’s request, a copy of such a 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.

Clause 10

Data subject rights

(a)        The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b)        The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in 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.

Clause 11

Redress

(a)        The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b)        In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c)        Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i)        lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii)        refer the dispute to the competent courts within the meaning of Clause 18.

(d)        The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e)        The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f)        The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(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

(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

(a)        The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b)        The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i)        the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii)        the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;  

(iii)        any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c)        The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d)        The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e)        The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f)        Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation, if appropriate in consultation with the controller. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the controller or the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

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.

(b)        If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c)        Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).  

(d)        The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e)        Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(a)        The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b)        The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.  

(c)        The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

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 of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d)        Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)        Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of: (i) the member state specified in the Data Processing Agreement, if any; or (ii) if no member state is specified, then Germany.

Clause 18

Choice of forum and jurisdiction

(a)        Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b)        The Parties agree that those shall be the courts of the member state specified on Exhibit 1 to the Data Processing Agreement.

(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

Please refer to the Appendices to the Transfer Addendum

SCHEDULE 2

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Refer to the Annexes of the Data Processing Agreement for information required by the Tables.

Part 2: Mandatory Clauses

1.    Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

2.    Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.  The Parties agree that they are bound by this Schedule upon execution of the Data Processing Agreement.

Interpretation of this Addendum

3.    Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

a.     Addendum: This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.

b.     Addendum EU SCCs: The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.

c.     Appendix Information: As set out in Table ‎3.

d.     Appropriate Safeguards: The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.

e.     Approved Addendum: The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎18.

f.    Approved EU SCCs: The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.

g.     ICO: The Information Commissioner.

h.     Restricted Transfer: A transfer which is covered by Chapter V of the UK GDPR.

i.     UK: The United Kingdom of Great Britain and Northern Ireland.

j.     UK Data Protection Laws: All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

k.   UK GDPR: As defined in section 3 of the Data Protection Act 2018.

4.    This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

5.    If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

6.    If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

7.    If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.

8.    Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9.    Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section ‎10 will prevail.

10.    Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11.    Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12.   This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

a.    together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;

b.    Sections ‎9 to ‎11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and

c.     this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

13.    Unless the Parties have agreed alternative amendments which meet the requirements of Section ‎12, the provisions of Section ‎15 will apply.

14.    No amendments to the Approved EU SCCs other than to meet the requirements of Section ‎12 may be made.

15.    The following amendments to the Addendum EU SCCs (for the purpose of Section ‎12) are made:

a.    References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;

b.    In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

c.    Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

d.    Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

e.    Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

f.    References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;

g.    References to Regulation (EU) 2018/1725 are removed;

h.    References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;

i.    The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;

j.    Clause 13(a) and Part C of Annex I are not used;

k.    The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;

l.    In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

m.    Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

n.    Clause 18 is replaced with:

"Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts."; and

o.    The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16.    The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17.     f the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

18.    From time to time, the ICO may issue a revised Approved Addendum which:

a.         makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or

b.         reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19.     If the ICO issues a revised Approved Addendum under Section ‎18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:

a.         its direct costs of performing its obligations under the Addendum; and/or

b.   its risk under the Addendum,

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20.  The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.