GDPR Data Processing Policy

THIS Data Processing Addendum is made
BETWEEN:

(1) Customer (the “Data Controller”); and

(2) ICS (the “Data Processor”),
(each a “Party”, and together the “Parties”).

WHEREAS

1. This Addendum is entered into to ensure adequate safeguards with respect to the protection of privacy and security of Personal Data transferred from the Data Controller to the Data Processor for Processing or accessed by the Data Processor on the authority of the Data Controller for Processing or otherwise received by the Data Processor for Processing on the Data Controller’s behalf.

2. This Addendum forms part of and shall be incorporated in the Master Services Agreement, End User License Agreement, or Terms of Use (as applicable), between ICS and Customer under which ICS’ Services are offered (“Service Agreement”).

IT IS AGREED THAT:

DEFINITIONS

In this Addendum, the following capitalized terms shall have the following meanings:

“Affiliate”	means any entity controlling, controlled by, or under common control of the subject entity. For the purposes of this definition, “control” (including with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to the subject entity, means the possession, directly or indirectly, of the power to direct or exercise a controlling influence on the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise;
“Authorized Affiliate”	means any of Customer Affiliate(s) which (a) is subject to the data protection laws and regulations of the EEA and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use Services pursuant to the Service Agreement;
“Data Controller”	means the entity that determines the purposes and means of the Processing of Personal Data;
“Data Processor”	means the entity that Processes Personal Data on behalf of the Data Controller;
“Data Protection Laws and Regulations”	means all laws and regulations, including laws and regulations of the EEA and their member states, Switzerland, the UK and the United States of America, applicable to the Processing of Personal Data under the Addendum;
“Data Subject”	means an identified or identifiable natural person who is the subject of Personal Data;
“EEA”	means the European Economic Area;
“EU”	means the European Union;
“GDPR”	refers to 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, and repealing Directive 95/46/EC (General Data Protection Regulation);
“ICS” / “Infinite Convergence Solutions, Inc.”	means the entity which is a party to the Service Agreement and this Addendum; as determined by the Service Agreement, being Infinite Convergence Solutions, Inc., 3231 N Wilke Road, Arlington Heights IL 60004, United States of America;
“Instruction”	means the written instruction, submitted by the Data Controller to the Data Processor, and directing the same to perform a specific action with regard to Personal Data (including depersonalizing, blocking, deletion, making available, etc.);
“Personal Data”	means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity;
“Personal Data Breach”	means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
“Process/es/ed/ing”	means any operation or set of operations which is performed on the 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;
“Schedule”	means the respective schedule(s) annexed to and forming part of this Addendum;
“Services”	means Processing of the Personal Data by the Data Processor in connection with and for the purposes of the provision of the services to be provided by the Data Processor to the Data Controller relating to the Service Agreement including as described in Schedule 1 to this Addendum;
“Standard Contractual Clauses”/”SCCs”	means the agreement executed by and between Data Controller and Data Processor, attached hereto as Schedule 4 pursuant to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 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;
“Subprocessor”	means any processor engaged by the Data Processor (or by any other Subprocessor of the Data Processor) who agrees to receive from the Data Processor (or from any other Subprocessor of the Data Processor) Personal Data exclusively intended for Processing such Personal Data on behalf of the Data Controller in accordance with its Instructions and the terms of the written subcontract;
“MFA” or “2FA”	Multi-Factor Authentication or Two-Factor Authentication;
“Switzerland”	means the Swiss Confederation; and
“UK”	means the United Kingdom of Great Britain and Northern Ireland.

The captions and section headings used are for the purposes of reference and convenience only, are not a part of this Addendum, and shall not be used in construing this Addendum.
Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include bodies corporate, unincorporated associations and partnerships, in each case whether or not having a separate legal personality. References to the word “include” or “including” are to be construed without limitation.
References to recitals, schedules and clauses are to recitals and schedules to and clauses of this Addendum unless otherwise specified and references within a schedule to paragraphs are to paragraphs of that schedule unless otherwise specified.
References in this Addendum to any statute, statutory provision or law include a reference to the statute or statutory provision or the law as from time to time amended, extended or re-enacted. Any reference to “writing” or “written” includes faxes and any non-transitory form of visible reproduction of words (like emails), unless expressly indicated to the contrary.

SCOPE AND APPLICATION OF THIS ADDENDUM
1. The subject-matter, nature and purpose as well as the type of Personal Data and the categories of Data Subjects affected are set out in Schedule 1 to this Addendum.
2. This Addendum shall apply, in relation to the Services, to:

DATA PROCESSING
The Data Processor agrees to Process the Personal Data to which this Addendum applies by reason of clause 2 in accordance with the terms and conditions set out in this Addendum, and in particular the Data Processor agrees:
1. To Process the Personal Data only on behalf of the Data Controller and at all times in compliance with the Data Controller’s Instructions based on this Addendum. This Addendum and the Service Agreement are Data Controller’s complete and final documented Instructions at the time of signature of the Service Agreement to the Data Processor for the Processing of Personal Data. Any additional or alternate Instructions must be agreed upon separately. Instructions orally given shall be promptly confirmed in writing by the Data Controller. If the Data Processor cannot provide such compliance for whatever reasons, it agrees to promptly notify the Data Controller of its inability to comply, unless laws applicable to the Data Processor prohibit such information on important grounds of public interest. Where the Data Processor believes that compliance with any Instructions by the Data Controller would result in a violation of Data Protection Laws and Regulations, the Data Processor shall notify the Data Controller thereof in writing without delay;
2. That within the Data Processor’s area of responsibility, the Data Processor shall structure its internal corporate organization to ensure compliance with the specific requirements of the protection of Personal Data. The Data Processor shall take appropriate technical and organizational measures to adequately protect Personal Data Processed on behalf of the Data Controller against misuse and loss in accordance with the requirements of Data Protection Laws and Regulations. An overview of the technical and organizational measures agreed at the time of signature of this Addendum between the Parties has been attached as Schedule 2 to this Addendum. The Data Processor regularly monitors compliance with these measures. The Data Processor may change the technical and organizational measures implemented to adequately protect the Data Controller‘s Personal Data against misuse and loss as long as such changes will not materially decrease the overall security of the Services during the subscription term.
3. That persons entrusted with the Processing of the Data Controller’s Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
4. Not to divulge the Personal Data whether directly or indirectly to any person, firm or company or otherwise without the express prior written consent of the Data Controller except to those of the Data Processor’s partners, officers, directors, employees, accountants, attorneys, independent contractors, temporary employees, affiliates, agents or any other representatives that may from time to time be employed, retained by, working for, or acting on behalf of, the Data Processor with a bona fide need to have access to such Personal Data (collectively, “Representatives”) and Subprocessors who are engaged in the Processing of the Personal Data and are subject to the obligations referred to in clause 3.3, or except as may be required by any law or regulation applicable to the Data Processor, its Representatives or Subprocessors;
5. That it will notify the Data Controller in writing and without undue delay about:
  1. A Personal Data Breach. Such notification shall include, taking into account the nature of the Processing, and the information available to the Data Processor, information relevant to reasonably assist the Data Controller in ensuring compliance with its own notification obligations under Data Protection Laws and Regulations. In so far as it is not possible to provide the relevant information at the same time, the Data Processor may provide the information in phases without further undue delay;
  2. Any request received directly from a Data Subject without responding to that request, unless it has been otherwise authorized to do so in writing by the Data Controller;
6. Taking into account the nature of the Processing and at the cost of Data Controller, to reasonably assist the Data Controller by appropriate technical and organizational measures, insofar as this is reasonably possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the Data Subject’s rights laid down by Data Protection Laws and Regulations;
7. At the cost of the Data Controller to make available to the Data Controller all information reasonably necessary to demonstrate compliance with the obligations laid down in this Addendum and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller as set forth in clause 7;
8. That any Processing services carried out by a Subprocessor will be carried out in accordance with clause 8;
9. That the Data Processor has appointed a data protection officer to the extent this is required by Data Protection Laws and Regulations. The Data Processor will provide the contact details of the appointed person upon request of the Data Controller; and
10. At the cost of Data Controller to reasonably assist the Data Controller in ensuring compliance with the obligation to carry out data protection impact assessments and prior consultations with supervisory authorities, taking into account the nature of the Processing and the information available to the Data Processor.

OBLIGATIONS OF THE DATA CONTROLLER

The Data Controller agrees and warrants that any disclosure of Personal Data made by or on behalf of it to the Data Processor is made with the Data Subject’s consent or is otherwise lawful.

DURATION; TERMINATION; RETURN OR DELETION OF PERSONAL DATA

This Addendum will become effective when the Parties’ Service Agreement enters into effect into which this Addendum has been incorporated. This Addendum will terminate automatically upon the later of (a) termination or expiry of the Data Processor’s obligations in relation to the Services or (b) termination of Processing of the Personal Data by the Data Processor. On termination of this Addendum, the Data Processor shall return to the Data Controller or delete, at the Data Controller’s choice, all Personal Data Processed on behalf of the Data Controller, unless applicable law requires storage of the Personal Data. Upon the request of the Data Controller, the Data Processor shall confirm compliance with such obligations in writing.

LIABILITY

The Parties agree that the limitations of liability set forth in the Service Agreement apply to any violation of the provisions of this Addendum or any damage which may result from the Data Processor’s or any Subprocessor’s non-compliance with Data Protection Laws and Regulations. Nothing in this section will affect the remaining terms of the Service Agreement relating to liability, including any specific exclusions from any limitation of liability.

AUDITS AND INFORMATION REQUESTS

The Data Controller may during regular business hours without unreasonably interfering with the Data Processor’s business operations, and upon a minimum of thirty (30) days prior written notice, personally audit Data Processor, or appoint a third-party auditor, who is subject to confidentiality obligations and not acting as a competitor of the Data Processor, and in Data Processor’s reasonable opinion, is suitably qualified, to carry out such audit at Data Controller’s sole cost. Customer agrees to audit ICS not more than once per year, unless there are indications of non-compliance or in case the audit is required by a decision of a data protection supervisory authority, a court or under applicable Data Protection Laws and Regulations following a Personal Data Breach at the Data Processor concerning the Personal Data of the Data Controller. The Data Processor shall, upon request and within a reasonable time, provide the Data Controller with relevant information to assist any audit of the Processing governed by this Addendum. In deciding on an audit, the Data Controller shall take into account relevant certifications held or audit reports provided by the Data Processor. The Data Controller ensures and is responsible that the results of the audit report are kept confidential, unless disclosure is required by a data protection supervisory authority, a court or applicable Data Protection Laws and Regulations. The Data Processor may charge the Data Controller for the reasonable costs incurred with respect to responding to information requests and assisting with audits.

APPOINTMENT OF SUBPROCESSORS
1. The Data Controller hereby consents to and generally authorizes the engagement of Subprocessors by the Data Processor. Currently, and depending on the choice of Services, the Data Processor has engaged the Subprocessor(s) set forth in Schedule 3 whose engagement is hereby authorized by the Data Controller.
2. The Data Processor shall provide notification of a new Subprocessor before authorizing the new Subprocessor to Process Personal Data in connection with the provision of the Services. In order to exercise its right to object to Data Processor’s use of a new Subprocessor, the Data Controller shall notify the Data Processor promptly in writing within ten (10) days after receipt of the Data Processor’s notice. In the event the Data Controller objects to a new Subprocessor, and that objection is duly substantiated and not unreasonable, the Data Processor will use reasonable efforts to make available to the Data Controller a change in the Services or, in the alternative, recommend a commercially reasonable change to Data Controller’s configuration or use of the Services to avoid Processing of Personal Data by the contested new Subprocessor without unreasonably burdening the Data Controller. If the Data Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, the Data Controller may terminate the relevant portion(s) of the Services which cannot be provided by the Data Processor without the use of the contested new Subprocessor by providing written notice to the Data Processor.
3. Any such Processing by a Subprocessor shall be done pursuant to a written agreement that is no less restrictive than this Addendum.
4. No Processing by a Subprocessor will release the Data Processor from its responsibility for its obligations under this Addendum, and the Data Processor will be fully liable to the Data Controller for the work and activities of each of its Subprocessors subject to the limitations of the Service Agreement.
AUTHORIZED AFFILIATES

The Parties acknowledge and agree that, by executing the Service Agreement, the Data Controller enters into the Addendum, in the name and on behalf of its Authorized Affiliates (to the extent any such Affiliates are authorized under the applicable Service Agreement), thereby establishing a separate Addendum between the Data Processor and each such Authorized Affiliate subject to the provisions of the Service Agreement and this Section 9. Each Authorized Affiliate agrees to be bound by the obligations under this Addendum and, to the extent applicable, the Service Agreement. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Service Agreement and any violation of the terms and conditions of the Service Agreement by an Authorized Affiliate shall be deemed a violation by the Data Controller.

STANDARD CONTRACTUAL CLAUSES
1. In the course of the provision of Services under the Service Agreement by the Data Processor, it will be necessary to transfer Personal Data from the Data Controller or any Authorized Affiliate to the Data Processor and its Subprocessors located in the United States of America.
2. For the purposes of the data transfers referred to in clause 10.1, the Standard Contractual Clauses set out in Schedule 4 shall form an integral part of this Addendum and apply as further specified in the following clauses 10.3 to 10.16, which contain operative provisions for the implementation of the Standard Contractual Clauses, to the
  1. Data Controller; and
  2. Authorized Affiliates of the Data Controller,
  if either of the aforementioned entities is subject to the Data Protection Laws and Regulations of the EU, the EEA and/or their member states, Switzerland and/or the UK. For the purposes of the SCCs and this clause 10, the aforementioned entities are individually or collectively referred to as “Data Exporter/s”.
3. For the purposes of clauses 8.1(a) and 8.8 of the SCCs, clause 3 of this Addendum and the Service Agreement are the Data Exporter’s complete and final documented instructions at the time of signature of the Service Agreement to ICS for the Processing of Personal Data and include onward transfers to third parties, including to Subprocessors, located outside the EU/EEA for the purpose of the performance of the Services. Any additional or alternate instructions must be consistent with the terms of this Addendum and the Service Agreement.
4. For the purposes of clauses 8.5 and 16(d) of the SCCs, the Parties agree that the certification of deletion of Personal Data shall be provided by ICS to the Data Exporter only upon written request.
5. For the purposes of clause 8.6(a) of the SCCs, the Data Exporter is solely responsible for making an independent determination as to whether the technical and organisational measures set forth in Annex II to the SCCs meet its requirements. The Data Exporter agrees that at the time of signature of the Service Agreement, having taken into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing of Personal Data as well as the risks to individuals, the technical and organizational measures taken by ICS provide a level of security appropriate to the risk with respect to the Personal Data.
6. For the purposes of clause 8.9(a)-(c) of the SCCs, ICS shall handle Data Exporter’s requests for information in accordance with clause 3.7 of this Addendum.
7. For the purposes of clauses 8.9(c)-(e) of the SCCs, any audit shall be carried out in accordance with clause 7 of this Addendum.
8. For the purposes of clause 9.a of the SCCs, the following shall apply:
  1. ICS has the Data Exporter’s general authorization to engage Subprocessors in accordance with clause 8 to this Addendum. A current list of Subprocessors is attached as Schedule 3 to this Addendum. ICS shall inform the Data Exporter of any changes to Subprocessors following the procedure set out in clause 8 of this Addendum.
  2. Where ICS enters into Module 3 of the SCCs (governing transfers of Personal Data between Data Processors) with a Subprocessor in connection with the provision of the Services, the Data Exporter hereby grants ICS authority to provide a general authorization on behalf of the Data Exporter for the engagement of further Subprocessors by Subprocessors engaged in the provision of the Services, as well as decision-making and approval authority for the addition or replacement of any such Subprocessors.
9. For the purposes of clause 11 of the SCCs, and subject to clause 3.5.2 of this Addendum, ICS shall inform Data Subjects on its website of a contact point authorized to handle complaints. ICS shall inform the Data Exporter if it receives a complaint by, or a dispute from, a Data Subject with respect to Personal Data in connection with the provision of the Services and shall without undue delay communicate the complaint or dispute to the Data Exporter. ICS shall not have any further obligation to handle the request, unless otherwise agreed with the Data Exporter in each individual case.
10. For the purposes of clause 12 of the SCCs, the following shall apply:
  1. ICS’ liability under Clause 12(a) of the SCCs shall be subject to the limitations of the Service Agreement.
  2. ICS liability under clause 12(b) of the SCCs shall be limited to any damage caused by its Processing where it has not complied with its obligations under the GDPR specifically directed to Data Processors, or where it has acted outside of or contrary to lawful Instructions of the Data Exporter, as specified in Article 82(2) GDPR.
  3. ICS shall be exempt from liability under clause 10.10.2 of this Addendum if it proves that it is not in any way responsible for the event giving rise to the damage pursuant to Article 82(3) GDPR.
11. For the purposes of Clause 13 of the SCCs, the following shall apply:
  1. Where the Data Exporter is established in an EU member state, the supervisory authority with responsibility for ensuring compliance by the Data Exporter with the GDPR as regards the data transfer shall act as competent data protection supervisory authority.
  2. Where Data Exporter is not established in an EU member state, but falls within the territorial scope of application of the GDPR in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) GDPR, the supervisory authority of the EU member state in which the representative within the meaning of Article 27(1) GDPR is established shall act as competent data protection supervisory authority.
  3. Where the Data Exporter is not established in an EU member state, but falls within the territorial scope of application of the GDPR in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) GDPR, the Bavarian data protection supervisory authority shall act as competent data protection supervisory authority.
  4. Where the Data Exporter is established in the UK or falls within the territorial scope of UK Data Protection Laws and Regulations, the Information Commissioner’s Office shall act as competent data protection supervisory authority insofar as the relevant data transfer is (also) governed by UK Data Protection Laws and Regulations.
  5. Where the Data Exporter is established in Switzerland or falls within the territorial scope of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent data protection supervisory authority insofar as the relevant data transfer is (also) governed by Swiss Data Protection Laws and Regulations.
12. For the purposes of Clause 15(1)(a) of the SCCs, the following shall apply:
  1. The data importer shall notify the Data Exporter (only) and not the Data Subject(s) in each and every case it either
    1. Receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of Personal Data transferred pursuant to the SCCs; or
    2. Becomes aware of any direct access by public authorities to Personal Data transferred pursuant to the SCCs in accordance with the laws of the country of destination.
  2. The Data Exporter shall be solely responsible for promptly notifying the Data Subject(s) as necessary.
13. The governing law for the purposes of clause 17 of the SCCs shall be governed by either
  1. The laws of Germany; or
  2. Where the Data Controller is located in the UK, the laws of the UK.
14. The courts under clause 18(b) of the SCCs of either
  1. Germany; or
  2. Where the Data Controller is located in the UK, the UK;
  shall have exclusive jurisdiction to resolve any dispute arising from the SCCs. For Data Subjects habitually resident in Switzerland, the courts of Switzerland are an alternative place of jurisdiction in respect of disputes.
15. The Appendix to the SCCs shall be completed as follows:
  1. The contents of section 1 of Schedule 1 to this Addendum shall form Annex I.A to the SCCs.
  2. The contents of section 2 of Schedule 1 to this Addendum shall form Annex I.B to the SCCs.
  3. The contents of section 3 of Schedule 1 to this Addendum shall form Annex I.C to the SCCs.
  4. The contents of Schedule 2 to this Addendum shall form Annex II to the SCCs.
  5. The contents of Schedule 3 to this Addendum shall form Annex III to the SCCs.
16. In case of any transfers of Personal Data from the UK and/or transfers of Personal Data from Switzerland,
  1. General and specific references in the SCCs to the GDPR, EU or EU member state law shall have the same meaning as the equivalent reference in the Data Protection Laws and Regulations of the UK or Switzerland, as applicable; and
  2. Any other obligation in the SCCs determined by the EU member state in which the Data Exporter or Data Subject is established shall refer to an obligation under Data Protection Laws and Regulations of the UK or Switzerland, as applicable.
  In respect of data transfers governed by Data Protection Laws and Regulations of Switzerland, the SCCs also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Data Protection Laws and Regulations of Switzerland until such laws are amended to no longer apply to a legal entity.
  
  If the SCCs for data transfers from the UK and/or Switzerland should be declared null and void and/or be revised and/or amended by a competent body, the Parties will without undue delay, acting reasonably and in good faith, agree on the then applicable and/or available instruments required to provide for appropriate safeguards and enter into such agreed instruments in a legally binding form.
17. Signature of this Addendum shall be deemed to constitute signature and acceptance of the SCCs as set forth in Schedule 4. Where the Parties separately execute the SCCs (Module Two: Transfer Controller to Processor), the signed version of the SCCs shall be incorporated into this Addendum and become attached to this Addendum as Schedule 4.
MISCELLANEOUS PROVISIONS
1. Amendments or additions to this Addendum must be made in writing to be effective. This shall also apply to amendments of this written form requirement. The written form requirement in this clause does not include faxes or any non-transitory form of visible reproduction of words (like emails).
2. Should any provision of this Addendum be or become invalid, this shall not affect the validity of the remaining terms. The Parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Addendum.
3. Any Data Processor obligations arising from statutory provisions or according to a judicial or regulatory decision shall remain unaffected by this Addendum.
4. This Addendum shall not replace any comparable or additional rights relating to Processing of Personal Data of the Data Controller contained in the Service Agreement. In the event of any conflict or inconsistency between this Addendum and the Service Agreement, this Addendum shall prevail.
5. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses in Schedule 4, the latter shall prevail.
6. This Addendum shall be governed by the same law that is governing the Service Agreement between the Parties, except for the Standard Contractual Clauses which shall be governed by the law applicable pursuant to clause 17 of the Standard Contractual Clauses and clause 10.13 of this Addendum.

Schedule 1: Description of the Processing

LIST OF PARTIES
1. Data exporter(s)
  Name: Customer
  
  Activities relevant to the data transferred under these Clauses: Performance of the Services pursuant to the Service Agreement and as further described in this Addendum.
  
  Role (controller/processor): For the purposes of the Standard Contractual Clauses set out in Schedule 4 to this Addendum, Customer and/or its Authorized Affiliate is acting as a Data Controller.
2. Data importer(s)
  1. Name: Infinite Convergence Solutions, Inc.
  
  Address: 3231 N Wilke Road, Arlington Heights IL 60004, United States of America
  
  Activities relevant to the data transferred under these Clauses: Performance of the Services pursuant to the Service Agreement and as further described in this Addendum.
  
  Role (controller/processor): For the purposes of the Standard Contractual Clauses set out in Schedule 4 to this Addendum, ICS is acting as a Data Processor.

DESCRIPTION OF THE PROCESSING

Categories of data subjects whose personal data is transferred
NetSfere Enterprise and NetSfere Omnichannel:
Data subjects include the individuals about whom ICS Processes data in connection with the Services.

Categories of personal data transferred

NetSfere Enterprise:
Required Data:	Email address and display name.
Optional Data:	Message content (if messages are sent/received), VoIP call history (if calls are placed/received), profile picture, custom contact attributes, 3rd party credentials, credit card information, and mobile number (for MFA/2FA)
NetSfere Omnichannel:
Required Data:	phone numbers (mobile, land or work numbers) and message content (text and media content such as files, video) or email address and email content.
Optional Data:	If the Customer uses the Omnichannel’s Campaign Manager or the Emergency Broadcast Notifications, the Customer can import: date of birth, gender, physical address, age, and custom contact attributes. This data is exclusively controlled by the Customer. If the Customer signs up for a commercial account via the Omnichannel Developer Portal, the billing information includes name, address, and credit card information.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved*
NetSfere Enterprise and NetSfere Omnichannel: None.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis)
NetSfere Enterprise and NetSfere Omnichannel: Continuous.
Nature of the processing
NetSfere Enterprise and NetSfere Omnichannel:
ICS will process Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Addendum
Purpose(s) of the data transfer and further processing
NetSfere Enterprise and NetSfere Omnichannel:
Personal Data will be transferred from the Customer to ICS’ platform to facilitate communication engagement between Customer and its end users.
The Service will consist of providing a communication platform for the Customer to use in order to on-board and interact with end users as well as analyze their use of the product and /or Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
NetSfere Enterprise:
The retention period of “Optional Data” is controlled and configurable by the Customer. ICS will retain data through the subscription term plus the period from the expiry of the subscription term until deletion of all Customer Personal Data by ICS in accordance with this Addendum.
NetSfere Omnichannel:
The retention period of personal data is limited to the duration needed to perform its obligations under the Service Agreement for billing and message delivery, unless a legal obligation applies.
Transfers to (sub-)processors: Subject matter, nature and duration of the processing
NetSfere Enterprise: Not Applicable
NetSfere Omnichannel: Sub-processors will process Customer Personal Data for the purposes of providing the Services to ICS and its Customer in accordance with the Addendum.

COMPETENT SUPERVISORY AUTHORITY

To identify the competent supervisory authority/ies in accordance with clause 13 of the SCCs, please refer to clause 10.11 of this Addendum.

A current list of data protection supervisory authorities in the EU/EEA and their contact details is available at https://edpb.europa.eu/about-edpb/about-edpb/members_en. The UK data protection supervisory authority can be contacted as indicated at https://ico.org.uk/global/contact-us/; the Swiss data protection supervisory authority as indicated at https://www.edoeb.admin.ch/edoeb/en/home/the-fdpic/contact.html.

Schedule 2: Description of Technical and Organizational Measures

NetSfere Enterprise and NetSfere Omnichannel: the description of technical and organizational matters below applies to both products.

ICS implements the Technical and Organization Measures to protect personal data under the Service Agreement.

Information Security Program
ICS maintains an information security program (including the adoption and enforcement of internal policies and procedures) designed to:
1. Secure customer data (including personal data) against accidental or unlawful loss, access, or disclosure
2. Identify reasonably foreseeable and internal risks to security and unauthorized access to the ICS Network
3. Mitigate security risks through regular testing, monitoring, and risk assessment
The information security program includes the measures identified below.
1. Product Security
  ICS products and services are electronically accessible to customers, users, customer employees and contractors, ICS employees and contractors, and any other person as necessary to provide the associated services. ICS provides and manages access controls for appropriate access to the ICS products. ICS maintains corrective action and incident response plans to respond to potential security threats.
  1. Network Security Hardening
    ICS implements security measures for its products prior to deployment. This is accomplished by:
    1. Disabling insecure protocols
    2. Only enabling IP addresses and ports that are necessary
    3. Disabling any weak or compromised ciphers
    4. Periodically scanning for new vulnerabilities
    5. Internal audits for security
    6. Annual independent audits for ISO27001 and TL9000
    7. Annual assessments against HIPAA, PCI-DSS, and GDPR standards
  2. Transmission Control
    ICS implements measures to prevent personal data from being read, copied, altered, or deleted by unauthorized parties during the transmission thereof. This is accomplished by:
    1. Encryption technologies to protect pipelines through which the data travels
    2. Encryption using secure remote access, transport, and communication of data
    3. Monitoring of encryption technologies
  3. Secure Storage
    ICS implements measures to secure storage of personal data from unauthorized access. This is accomplished by:
    1. Encrypting personal data stored in the product(s)
    2. Encrypting transport and encrypted archiving of personal data
2. Physical Security
  1. Access Control to Processing Areas
    ICS implements measures in order to prevent unauthorized persons from gaining access to the data processing equipment used to process personal data. This is accomplished by:
    1. All access points are maintained in a secured (locked) state.
    2. Physical barrier controls are used to prevent unauthorized entrance to the facilities at the building access points. Passage through the physical barriers requires either electronic access control validation (e.g. card access systems, etc.) or validation by human security personnel (e.g. contract or in-house security guard service, receptionist, etc.).
    3. Employees and contractors are assigned ID badges.
    4. All physical access to the facilities by employees and contractors is logged and routinely audited.
    5. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of ICS or its affiliates.
    6. Visitors are required to sign-in with designated personnel, must show appropriate identification, and are assigned a visitor ID badge that must be worn while at any of the facilities.
    7. Issuance of keys and keycards is controlled.
    8. Electronic intrusion detection systems designed to detect unauthorized access to the facilities are utilized.
    9. Data access control procedures are in place for sensitive hardcopy data.
  2. Access Control to Data Processing Systems
    ICS assigns unique and individual credentials and utilizes ID procedures (e.g. no re-use of the same ID within a set period of time, etc.)
    1. User ID and password unique for each employee
    2. Authentication of the authorized personnel via user ID and passwords
    3. Strong password enforcement and ageing policies
    4. Lock-out of user accounts after a pre-determined number of failed log-in attempts
    5. System time-out after non-activity for a pre-determined time period
    6. Anti-virus scanning
    7. No access for guest users or anonymous accounts
    8. Access to systems subject to approval from management and system administrators
    9. Logging user activities on systems
3. Availability Control
  ICS implements measures to ensure that personal data are protected from accidental destruction or loss. This is accomplished by:
  1. Business continuity
  2. Backup and disaster recovery management
  3. Uninterruptible Power Supply (UPS)
  4. Off-site backup storage
  5. Anti-virus/firewall systems
  6. Ongoing monitoring of operational state
  7. Geographic redundancy capability
4. Separation of Process for Different Purposes
  ICS implements suitable measures to ensure that personal data intended for different purposes can be processed separately. This is accomplished by:
  1. Restriction of access to personal data stored for different purposes according to staff duties (via user authorization passwords)
  2. Segregation of business IT systems
  3. Segregation of testing and production environments
  4. Use of personal data being application specific
5. Instructional Control
  ICS ensures that personal data may only be processed in accordance with the agreement and customer’s instructions. This is accomplished by:
  1. Information & security training and policies & procedures for employees
  2. Unambiguous wording of contractual instructions
  3. Auditing conformance
Continued Evaluation
ICS conducts periodic reviews of the security of its information security program as measured against industry security standards and its policies and procedures. ICS continually evaluates the security of its products and services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

Schedule 3: Subprocessors

The Data Controller has authorized the use of the following sub-processors:

Sub-processor (Name and Address)	Contact person’s name, position and contact details	Purpose and Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized)
AWS	AWS Compliance Support	Used as Infrastructure-As-A-Service (IaaS) to rent servers and storage from AWS, but AWS does not actually have access to the data on those servers/storage.
OTC	OTC Data Protection	Used as Infrastructure-As-A-Service (IaaS) to rent servers and storage from OTC, but OTC does not actually have access to the data on those servers/storage.
Telco Partners	Redacted per clause 8.3 of the Addendum	Delivery of messages

Schedule 4: Standard Contractual Clauses

(Module Two: Transfer Controller to Processor)

SECTION I

Clause 1
Purpose and scope

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.
The Parties:
1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
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

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.
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 - Clause 8.1(b), 8.9(a), (c), (d) and (e);
Clause 9 - Clause 9(a), (c), (d) and (e);
Clause 12 - Clause 12(a), (d) and (f);
Clause 13;
Clause 15.1(c), (d) and (e);

Clause 16(e);
Clause 18 - Clause 18(a) and (b).

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

(Intentionally left blank.)

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.

Instructions
1. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
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.

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 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.

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.

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

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.
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.
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.
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.

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.

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:

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;
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;
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
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Documentation and compliance

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

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 within ten (10) 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.
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.
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.
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.
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

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.
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.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from 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.
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.
Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
2. refer the dispute to the competent courts within the meaning of Clause 18.
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.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
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

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.
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.
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.
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.
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.
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.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13
Supervision

[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.
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

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

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;
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;
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.

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

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

Notification

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:

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
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.

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

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

The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
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).
The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

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;
the data importer is in substantial or persistent breach of these Clauses; or
the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

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.
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 Germany.

Clause 18
Choice of forum and jurisdiction

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

___________________

¹ Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

² This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.

³ The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

⁴ The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

⁵ See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.

⁶ The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purposes of these Clauses.

⁷ This includes whether the transfer and further processing 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 or offences.

⁸ This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

⁹ This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

¹⁰ That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.

¹¹ The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.

¹² As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

APPENDIX

ANNEX I

(Please refer to Schedule 1 of this Addendum.)

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

(Please refer to Schedule 2 of this Addendum.)

ANNEX III – LIST OF SUB-PROCESSORS

(Please refer to Schedule 3 of this Addendum.)

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GDPR Data Processing Policy

Schedule 1: Description of the Processing

Schedule 2: Description of Technical and Organizational Measures

Schedule 3: Subprocessors

Schedule 4: Standard Contractual Clauses

(Module Two: Transfer Controller to Processor)

SECTION I

Clause 1Purpose and scope

Clause 2Effect and invariability of the Clauses

Clause 3Third-party beneficiaries

Clause 4Interpretation

Clause 5Hierarchy

Clause 6Description of the transfer(s)

Clause 7 - OptionalDocking clause

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8Data protection safeguards

Clause 9Use of sub-processors

Clause 10Data subject rights

Clause 11Redress

Clause 12Liability

Clause 13Supervision