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Choozle Global Data Processing Agreement
This Data Processing Agreement (the “DPA“), effective as of the date of the last signature below (“Effective Date”), forms part of the Master Services Agreement, or such other agreement governing the direct relationship between the Parties hereto (collectively, the “Agreement”).
1. Definitions. In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings ascribed to them herein.
1.1. “Adequacy decision,” “data importer,” “data exporter,” “Process,” “Processing,” and “Sub-Processor,” and “Supervisory Authority” shall each have the meaning ascribed to it under Data Protection Law.
1.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
1.3. “Business” and “Controller” shall have the meanings ascribed to in Data Protection Law and shall be used interchangeably herein.
1.4. “Consumer” and “Data Subject” shall have the meanings ascribed to in Data Protection Law and shall be used interchangeably herein.
1.5. “Data Subject Request” shall mean a request form a Consumer or Data Subject regarding the exercise of their privacy rights under Data Protection Laws.
1.6. “Covered Data” means the data provided and processed as detailed in the Agreement and for the purposes described in the Agreement.
1.7. “Data Protection Laws” means all applicable laws and regulations applicable, including, as applicable, laws and regulations of the European Union (“EU”), the European Economic Area (“EEA”) and their member states, Switzerland and the United Kingdom (“UK”), including without limitation, Regulation 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” or “GDPR”) and EU Directive 2002/58/EC on Privacy and Electronic Communications (“e-Privacy Directive”) or, the superseding e-Privacy Regulation, once effective, and the United Kingdom’s General Data Protection Regulation (“UK GDPR”), and as applicable, the laws and regulations of the United States, including without limitation, the California Consumer Privacy Act of 2018 and its amendments including the California Privacy Rights Act (collectively, the “CCPA”), and Virginia’s Consumer Data Protection Act (“VCDPA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act (“CTDPA”), the Utah Consumer Privacy Act (“UCPA”), the Oregon Consumer Privacy Act (“OCPA”), Texas Data Privacy and Security Act (“TXDPSA”), and the Montana Consumer Privacy Act (“MTCDPA”).
1.8. “Member States” means a member of the EU.
1.9. “Personal Data” and “Personal Information” shall have the meanings ascribed in Data Protection Laws and shall be used interchangeably herein.
1.10. “Processor” and “Service Provider” shall have the meanings ascribed to it in Data Protection Law and shall be used interchangeably herein.
1.11. “Services” shall have the meaning ascribed to it in the Agreement.
2. Designation. The Parties acknowledge and agree that with regard to the Covered Data, Company is a Business and a Controller, and that Choozle is a Service Provider and a Processor.
3. Obligations.
3.1. Compliance with Law. With respect to the Covered Data, the Parties shall comply with Data Protection Law. Each Party shall promptly inform the other if it is unable to comply with this DPA. If the non-complying Party cannot comply within a reasonable period of time, or is in substantial or persistent breach of this DPA, the complying Party shall be entitled to remediate the non-compliant action and/or terminate the DPA and the Agreement insofar as it concerns processing of Covered Data.
3.2. Limitations on Processing. Service Provider shall at all times comply with Controller’s written instructions pursuant to the Agreement, this DPA, and all applicable laws, rules and regulations, including but not limited to, all applicable Data Protection Law. Service Provider shall only process the Covered Data for the limited purposes specified in the Agreement.
3.3. CCPA.
3.3.1. To the extent any Covered Data is deemed “Personal Information” (as such term is defined under the CCPA) and is subject to the CCPA, Service Provider agrees not to: (i) “sell” or “share” the Personal Information as such terms are defined under the CCPA; (ii) retain, use, or disclose Personal Information for any purpose other than for the specific purpose of performing the Services or as otherwise expressly permitted under the Agreement including retaining, using or disclosing the Personal Information for a commercial purpose other than the business purposes specified in this DPA or the Agreement, or as otherwise permitted by the CCPA; (iii) retain, use or disclose the Personal Information outside of the direct business relationship with Controller; (iv) combine Personal Information it receives from Controller with Personal Information it receives from or on behalf of another person or collects from its own interactions with consumers, except where required to provide the Services provided it is permitted under the CCPA.
3.3.2. For the avoidance of doubt, any Personal Information that: (i) Controller uploads directly to the Platform (as defined in the Agreement) or provides as part of the Services; (ii) is received to the Services directly through Controller‘s implementation, configuration, and/or use of the Services or Platform; or (iii) Controller directs or instructs its partner (e.g. through configuration of the Services or Platform) to send or disclose to Service Provider for Processing on Controller’s behalf for the purpose of providing the Services under the Agreement, shall be deemed Controller Personal Information received from Controller.
3.3.3. Business Purposes. In accordance with the CCPA, Service Provider may engage in the following enumerated Business Purposes:
3.3.3.1. Business Purpose 1: “Auditing related to counting ad impressions to unique visitors, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards.”
3.3.3.2. Business Purpose 4: “Short-term, transient use, including, but not limited to, nonpersonalized advertising shown as part of a consumer’s current interaction with the business, provided that the consumer’s personal information is not disclosed to another third party and is not used to build a profile about the consumer or otherwise alter the consumer’s experience outside the current interaction with the business.”
3.3.3.3. Business Purpose 5: “Performing services on behalf of the business, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, processing payments, providing financing, providing analytic services, providing storage, or providing similar services on behalf of the business.”
3.3.3.4. Business Purpose 6: “Providing advertising and marketing services, except for cross-context behavioral advertising, to the consumer provided that, for the purpose of advertising and marketing, a service provider or contractor shall not combine the personal information of opted-out consumers that the service provider or contractor receives from, or on behalf of, the business with personal information that the service provider or contractor receives from, or on behalf of, another person or persons or collects from its own interaction with consumers.”
3.4. Data Subject Rights. Service Provider shall promptly notify Controller if Service Provider receives a request from a Data Subject exercising a Data Subject Request. Upon Controller’s request, Service Provider shall assist Controller in responding to such Data Subject Requests.
3.5. Security.
3.5.1. Service Provider shall maintain appropriate technical and organizational measures for protection of the: (i) security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data); (ii) confidentiality of personal data; (iii) integrity of Personal Data, as set forth in any written information security policies Controller may provide to Service Provider, as may be updated by Controller from time to time; or (iv) as otherwise set forth in the Agreement.
3.5.2. The Parties shall take reasonable steps to ensure that access to the Covered Data is limited on a need to know/access basis and that all personnel receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access/use of Covered Data.
3.6. Security Breach or other Non-Compliance. Service Provider shall notify Controller without undue delay (and, in any event, within seventy two (72) hours) upon Service Provider or any sub-processor of Service Provider becoming aware of: (i) a breach of security measures leading to any actual or reasonably suspected unauthorized, accidental or unlawful: (a) use, destruction, loss, or unauthorized disclosure, of, or (b) alteration or access to, Personal Data; (ii) any security breach (or substantially similar term) as defined by applicable Data Protection Law; or (iii) any incident that impacts the Processing of Personal Data including: (y) an investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent, or (z) where, in the opinion of Service Provider, implementing an instruction received from Controller would violate the applicable Data Protection Law to which Controller or Service Provider are subject. Service Provider shall include in such notification sufficient information to allow Controller to meet any obligations to report or inform Data Subjects or any government regulators or other independent public authorities of the security breach under the Data Protection Law.
4. Cross-Border Transfers. If the Services involves the transfer of Personal Data of Data Subjects in the EEA or the UK, to a country or territory outside of those regions which has not received an applicable adequacy decision, the Parties hereby incorporate, and agree to comply with, the Standard Contractual Clauses set out by the European Commission Decision 2021/914/EU and approved for use in data transfers under the UK GDPR, located at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX%3A32021D0914&locale=en#ntc12-L_2021199EN.01003701-E0012 and attached hereto as Exhibit A (the “SCCs”). In such case: (i) the Parties will complete Annexes IA, IB, IC, II, and III of this DPA; and (ii) the Parties represent that they do not believe the laws and practices in any country to which Personal Data is transferred for purposes of the Agreement will prevent the importing Party from fulfilling its obligations under this DPA or the SCCs. By entering into this DPA, the Parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.
4.1. Ex-EEA Transfers. The Parties agree that the transfer of Personal Data, outside the EEA that is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR will be made pursuant to the EU SCCs, which are deemed entered into (and incorporated this DPA by this reference) and completed as follows:
4.1.1. Module 2 shall apply;
4.1.2. The optional docking clause in Clause 7 does apply;
4.1.3. In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be ten (10) days;
4.1.4. In Clause 11, the optional language does not apply;
4.1.5. All square brackets in Clause 13 are hereby removed;
4.1.6. In Clause 17 (Option 1), the EU SCCs will be governed by the laws of the member state of Data Exporter;
4.1.7. In Clause 18(b), disputes will be resolved before the courts of the member state of Data Exporter;
4.1.8. Annex I of the EU SCCs shall be deemed completed with the information set out in Annex IA, Annex IB, and Annex IC attached hereto; and
4.1.9. Annex II of the EU SCCs shall be deemed completed with the information set out in Annex II attached hereto.
4.2. Ex-UK Transfers. The Parties agree that transfer of Personal Data of UK Data Subject outside the UK, and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018 are made pursuant to the SCCs as well as the International Data Transfer Addendum to the European Commission’s Standard Contractual Clauses for International Data Transfers located at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-data-transfer-agreement-and-guidance/ and attached hereto as Exhibit B (the “IDTA”). The IDTA is hereby incorporated by reference.
4.2.1. ‘Part I: Tables’ of the IDTA shall be deemed completed with the information set out in Exhibit B attached hereto.
5. Data Protection Impact Assessment and Prior Consultation. Service Provider shall provide reasonable assistance to Controller with any data protection impact assessments, audits, certifications, or prior consultations with legal or regulatory authorities or other competent data protection authorities, which Controller reasonably considers to be appropriate or required under any Data Protection Laws, in relation to Processing of Personal Data by Service Provider.
6. Return or Deletion of Personal Data. Upon the expiration or termination of the Agreement, Service Provider shall, at Controller’s request either: (i) securely return to Controller; or (ii) securely destroy all Personal Data obtained by Service Provider in connection with the Agreement. Service Provider will provide written confirmation to Controller of its compliance with this provision.
7. Audits. Upon the reasonable request of the Controller, Service Provider shall make available to Controller all information in its possession necessary to demonstrate Service Provider’s compliance with the obligations described in this Agreement and shall allow for, and cooperate with, reasonable assessments by Controller or the Controller’s designated assessor. Controller shall not use such an audit report for any other purpose than to assess Service Provider’s compliance with this Agreement. Controller shall have the right, upon notice, to take reasonable and appropriate steps to stop and remediate the Service Provider’s unauthorized use of Personal Data.
8. General Terms.
8.1. Termination and Survival. This DPA and all provisions herein shall so long as the Agreement is in effect.
8.2. Counterparts. This DPA may be executed in any number of counterparts and any Party (including any duly authorized representative of a Party) may enter into this DPA by executing a counterpart.
8.3. Ineffective clause. If individual provisions of this DPA are or become ineffective, the effectiveness of the remaining provisions shall not be affected. The Parties shall replace the ineffective clause with a legally allowed clause, which will accomplish the intended commercial intention as closely as possible.
8.4. Conflicts. In case of contradictions between this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.
8.5. Applicable law and jurisdiction. The applicable law and jurisdiction as set forth in the Agreement apply to this DPA.
EXHIBIT A: STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ([1]) for the transfer of 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 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) 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
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
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.
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 ([2]) (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) OPTION 1: SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.
OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] 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. ([3]) 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.
[OPTION: The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body ([4]) at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.]
(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
- [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.
[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, 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] 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.
[3] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
[4] 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.
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 ([1]);
(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. 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
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.
[1] 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.
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
[OPTION 1: These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]
[OPTION 2: These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]
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 _____ (specify Member State).
(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.
ANNEX I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
Name: As provided in the Agreement
Address: As provided in the Agreement
Contact person’s name, position and contact details: As provided in the Agreement
Activities relevant to the data transferred under these Clauses:
Signature and date: As provided in the Agreement
Role (controller/processor): Controller
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: Choozle, Inc.
Address: 1125 17th St. #1000 Denver, CO 80202
Contact person’s name, position and contact details: ___________________
Activities relevant to the data transferred under these Clauses:
As provided in the Agreement
Signature and date: As provided in the Agreement
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Visitors of Company’s Designated Websites
Categories of personal data transferred
Web tracking metadata
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Continuous basis
Nature of the processing
Choozle will Process Covered Data as required for the purposes of providing the Services to Company.
Purpose(s) of the data transfer and further processing
Choozle will Process Covered Data for the purposes of providing the Services to Company.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
For the duration of the agreement and for 3 years thereafter, or longer as needed for record-keeping, legal obligation, etc.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The Supervisory Authority of the Data Exporter.
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
1. Organizational/Administrative Security Measures: Service Provider has implemented, and will maintain and update as appropriate throughout its Processing of Personal Information:
1.1. A written and comprehensive information security program in compliance with applicable data protection laws.
1.2. A data loss prevention program that reflects reasonable policies or procedures designed to detect, prevent, and mitigate the risk of data security breaches or identify theft, which shall include at a minimum:
1.2.1. appropriate policies and technological controls designed to prevent loss of personal information; and
1.2.2. a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of personal information as well as security needs for back-up sites and alternate communication networks.
1.3. Policies and procedures to limit access to personal information to those who require such access to perform their roles and responsibilities in connection with the Main Agreement, including regular updates to such access based on changes to Service Provider’s personnel, policies or procedures.
1.4. Procedures to verify all access rights through effective authentication methods.
1.5. A government agency data access policy that refuses government access to data, except where such access is required by law, or where there is imminent risk of serious harm to individuals.
1.6. Policies and procedures for assessing legal basis for, and responding to, government agency requests for data.
1.7. Specific training of personnel responsible for managing government agency requests for access to data, which may include requirements under applicable Data Protection Laws.
1.8. Processes to document and record government agency requests for data, the response provided, and the government authorities involved.
1.9. Procedures to notify Uber about any request or requirement for government agency access to data, unless legally prohibited.
2. Physical Security Measures
2.1. Service Provider has implemented, and will maintain and update as appropriate throughout its Processing of personal information, appropriate physical security measures for any facility used to Process personal information and continually monitor any changes to the physical infrastructure, business, and known threats.
3. Technical Security Measures: Service Provider shall throughout its Processing of personal information:
3.1. perform vulnerability scanning and assessments on applications and infrastructure used to Process personal information.
3.2. secure its computer networks using multiple layers of access controls to protect against unauthorized access.
3.3. restrict access through mechanisms such as, but not limited to, management approvals, robust controls, logging, and monitoring access events and subsequent audits.
3.4. identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files.
3.5. use up-to-date, industry standard, commercial virus/malware scanning software that identifies malicious code on all of its systems that Process personal information.
3.6. encrypt personal information in transit.
3.7. Encrypt sensitive personal information at rest and solely manage and secure all encryption keys (i.e. no other third party shall have access to these encryption keys, including Sub-processors).
Exhibit B: IDTA Addendum
Table 1: Parties
Start date | Effective Date of the Agreement | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
Parties’ details | Full legal name: As detailed in the Agreement Trading name (if different): Main address (if a company registered address): As detailed in the Agreement Official registration number (if any) (company number or similar identifier): | Full legal name: As detailed in the Agreement Trading name (if different): Main address (if a company registered address): As detailed in the Agreement Official registration number (if any) (company number or similar identifier): |
Key Contact | Full Name (optional): As detailed in the Agreement Job Title: As detailed in the Agreement Contact details including email: As detailed in the Agreement | Full Name (optional): As detailed in the Agreement Job Title: As detailed in the Agreement Contact details including email: As detailed in the Agreement |
Signature (if required for the purposes of Section 2) |
|
|
Table 2: Selected SCCs, Modules and Selected Clauses
Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information: Date: The Effective Date of the Agreement Reference (if any): Other identifier (if any): Or the Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum: |
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