This Data Processing Addendum, together with its Schedules (the “DPA”) is incorporated into, and is subject to the terms and conditions of, the Master Subscription Agreement (“Agreement”) between Swoogo, LLC (“Swoogo”) and customer entity that is party to the Agreement (“Customer”) (each a “Party”, collectively the “Parties”). Any data protection agreement(s) that may exist between the Parties as of the last signature date of the Agreement are superseded and replaced by this DPA in their entirety. All capitalized terms not defined in this DPA will have the meaning given to them in the Agreement.
Table of Contents
“Customer Personal Data” means any Personal Data Processed by Swoogo (or a Sub-processor) in the course of providing the Services under the Agreement.
“Data Breach” means the actual breach of security leading to the accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure of, acquisition of, or access to Customer Personal Data.
“Data Protection Laws” means all data protection Laws applicable to Swoogo’s processing of Customer Personal Data under the Agreement, including, where applicable, European Data Protection Laws and/or US Data Protection Laws.
“European Data Protection Laws” means all data protection Laws applicable to the European Economic Area and its member states (“EEA”), Switzerland, and the United Kingdom (“UK”), including: (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); (ii) all relevant European Union member state laws or regulations giving effect or corresponding with the GDPR; (iii) the UK Data Protection Act of 2018 (“UK GDPR”); and (iv) the Swiss Federal Act on Data Protection (“FADP”).
“Individual” means an identified or identifiable natural person to whom Personal Data relates under Data Protection Laws.
“Law” or “Laws” means all applicable international, United States federal, country, state, provincial, regional, territorial, local, and other laws, rules, and regulations (including, but not limited to, Data Protection Laws), ordinances, interpretive letters, and other official releases of or by any authority, decrees, orders, and codes (including any requirements for permits, certificates, approvals, and inspections), as the same are promulgated, supplemented, and/or amended from time to time.
“Personal Data” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Individual or household, and includes “personal information,” “personally identifiable information,” and analogous terms under Data Protection Laws.
“Sensitive Data” means: (i) social security number, passport number, driver’s license number, or similar identifier; (ii) financial account information; (iii) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, or data sex life or sexual orientation; (iv) a minor’s Personal Data; (v) precise geolocation data; or (vi) health or medical information.
“Services” means Swoogo’s event marketing software.
“Standard Contractual Clauses” means any or all of the following, as applicable: (i) the standard contractual clauses between controllers and processors adopted by the European Commission in its Implementing Decision (EU) 2021/914, attached hereto as Schedule D; (ii) the standard contractual clauses between processors adopted by the European Commission in its Implementing Decision (EU) 2021/914, attached hereto as Schedule E; (iii) the United Kingdom Information Commissioner’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B1.0), attached hereto as Schedule F; and/or (iv) Schedule G, modifying Schedule D or Schedule E, as applicable.
“Sub-processor” means any Processor engaged by Swoogo to assist in fulfilling its obligations under the Agreement. Sub-processors exclude an employee, contractor, or consultant of Swoogo.
“US Data Protection Laws” means, only if applicable to the Processing of Customer Personal Data in accordance with the Master Subscription Agreement and/or Order Form(s), the (i) Assembly Bill 375 of the California House of Representatives, an act to add Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code, relating to privacy and approved by the California Governor on June 28, 2018, including all regulations enacted in connection therewith, as the same may be amended, supplemented, or replaced from time-to-time, including without limitation, effective on January 1, 2023, the California Privacy Rights Act, Cal. Civ. Code §§ 1798.100–1798.199.100 (“CPRA”) (collectively, “CCPA”); (ii) effective on January 1, 2023, the Virginia Consumer Data Protection Act, Va. Code Ann. §§ 59.1-571–59.1-581 (2021), including all regulations enacted in connection therewith, as the same may be amended, supplemented, or replaced from time-to-time (“CDPA”); (iii) effective on July 1, 2023, the Colorado Privacy Act, C.R.S. § 6-1-1301, et seq. (2021), including all regulations enacted in connection therewith, as the same may be amended, supplemented, or replaced from time-to-time (“CPA”); (iv) effective on December 31, 2023, Utah Consumer Privacy Act, UCA § 13-61-102, including all regulations enacted in connection therewith, as the same may be amended, supplemented, or replaced from time-to-time (“UTCPA”); and/or (v) effective on July 1, 2023, the Connecticut Data Privacy Act, P.A. 22-15, including all regulations enacted in connection therewith, as the same may be amended, supplemented, or replaced from time-to-time (“CTDPA”).
The terms “Business”, “Controller”, “Data Subject”, “Member State”, “Processing”, “Processor”, “Sale”, “Service Provider” and “Supervisory Authority” shall have the same meaning assigned to them under Data Protection Laws, and shall be construed accordingly. The term “Controller” is deemed to include “Business,” and the term “Processor” is deemed to include “Service Provider.”
Swoogo is a Processor of Customer Personal Data, acting on behalf of Customer, whether itself a Controller or Processor with respect to Customer Personal Data.
Customer shall only provide Swoogo with Customer Personal Data as specified in the Agreement, Order Form(s), and this DPA. Customer represents and warrants that it complies and will continue to comply with the obligations applicable to it under Data Protection Laws with respect to Customer Personal Data – including ensuring that any necessary Individual notices with respect to and consents to the Processing conducted by Swoogo are obtained and for ensuring that a record of such notices and/or consents is maintained – and will not issue Processing instructions to Swoogo in violation of applicable Law. Customer has the sole responsibility for the accuracy, quality, and legality of Customer Personal Data and the means by which Customer acquires Personal Data and shares Personal Data with Swoogo. Customer will use the Services in compliance with all applicable Laws.
Swoogo shall Process Customer Personal Data, as described in Schedule A (Details of Customer Personal Data Processing) pursuant to Customer’s documented instructions in accordance with the Agreement and this DPA, or as required by applicable Law, including, but not limited to, Data Protection Laws, in which case Swoogo will notify the Controller of the legal requirement before Processing, unless that Law prohibits such information on important grounds of public interest. The Agreement, this DPA, and the Standard Contractual Clauses (if applicable) constitute Customer’s complete and final instructions to Swoogo for the Processing of Customer Personal Data. Any additional or alternate instructions must be agreed upon separately in writing and be consistent with this DPA. Swoogo shall notify Customer without unreasonable delay after Swoogo makes a determination that it can no longer meet its obligations under Data Protection Laws.
Customer shall ensure that Swoogo’s Processing of Customer Personal Data in accordance with Customer’s instructions will not cause Swoogo to violate applicable Law, including Data Protection Laws. Where Swoogo considers that an instruction infringes Data Protection Laws, it shall immediately inform Customer. If Customer fails to remedy such infringing instruction within thirty (30) calendar days after receipt of the notification, Swoogo may terminate the Agreement without liability to Customer.
Where Customer acts as a Processor on behalf of a third-party Controller, Customer warrants that its Processing instructions as set out in the Agreement and this DPA, including authorizations to Swoogo for the appointment of Sub-processors, have been authorized by the relevant Controller. Customer shall serve as the point of contact for Swoogo and Swoogo need not interact directly with any third-party Controller other than through regular provision of the Services to the extent required under the Agreement. Customer is responsible for providing all notifications and/or seeking appropriate authorizations from the relevant Controller.
Customer shall not provide (or cause to be provided) any Sensitive Data for Processing under the Agreement. If any Sensitive Data is incidentally or accidentally provided to Swoogo, Swoogo will treat such data in the same way that it treats Customer Personal Data under this DPA. Customer agrees that Swoogo will have no liability whatsoever for Sensitive Data transferred by Customer to Swoogo.
Swoogo may aggregate, deidentify, and/or anonymize Customer Personal Data in accordance with Data Protection Laws to use such data for Swoogo’s own internal analytics purposes. Customer agrees to allow Swoogo to irreversibly anonymize personal data in accordance with Applicable Data Protection Law (“Customer Anonymized Data”) to use such Customer Anonymized Data for the improvement of Swoogo’s own products and services. Swoogo will: (i) take reasonable measures to ensure that the information cannot be associated with a consumer or household; (ii) contractually obligate any recipients of the information to comply with Data Protection Laws; (iii) publicly commit to maintain and use the information in anonymized form and not to attempt to re-identify the information, except that Swoogo may attempt to reidentify the information solely for the purpose of determining whether its anonymization process satisfy the requirements of Data Protection Laws.
To the extent US Data Protection Laws apply to the Processing of Customer Personal Data, Swoogo is prohibited from (i) selling or sharing (as such terms are defined under Data Protection Laws) Personal Data Swoogo receives from, or on behalf of, Customer; (ii) retaining, using, or disclosing the Personal Data received from, or on behalf of, Customer, unless expressly permitted by Data Protection Laws, (a) for any purposes other than those specified in the Agreement or the DPA, (b) for any commercial purpose other than the business purposes specified in the Agreement and DPA, including in the servicing of a different customer, (c) outside the direct business relationship between the Swoogo and Customer. Swoogo shall Process Personal Data only for the limited and specified business purpose(s) set forth within this Agreement and DPA; and (iii) combining the personal information that Swoogo receives from, or on behalf of, Customer with Personal Data that Swoogo receives from, or on behalf of, another customer, or collects from Swoogo’s own interaction with the consumer, provided that Swoogo may combine personal information to perform certain business purposes as defined in regulations adopted under the CCPA. Notwithstanding the foregoing, Swoogo may use, disclose, or retain Customer Personal Data to: (i) to detect data security incidents or to protect against fraudulent or illegal activity; (ii) to comply with applicable Laws; or (iii) to defend legal claims or comply with a law enforcement investigation; or (iv) retain and employ a Sub-processor in accordance with this DPA. Swoogo certifies it shall comply with these restrictions.
10.1 Personnel
Swoogo shall ensure that any persons authorized to Process Customer Personal Data by Swoogo have committed themselves to confidentiality, and that such person shall only have access to Customer Personal Data to the extent necessary to perform their job duties.
10.2 Security Measures
Swoogo shall implement and maintain, for the Customer Personal Data, appropriate technical and organizational measures to ensure a level of security appropriate to the risk and shall take all measures required pursuant to Article 32 of the GDPR, as set forth in more detail in Schedule B (the “Security Measures”). Customer is responsible for reviewing the Security Measures and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under applicable Laws, including Data Protection Laws. Customer agrees and acknowledges that Swoogo may update or modify the Security Measures, provided that such updates or modifications do not materially degrade the security of the Services provided to Customer. Notwithstanding any other provision herein, at all times, Customer has the right to take reasonable and appropriate steps to stop and remediate unauthorized use of Customer Personal Data, including any Processing of Customer Personal Data not authorized by this DPA. Without limiting the foregoing, Swoogo will provide the same level of protection to Customer Personal Data as is required under Data Protection Laws applicable to Customer.
10.3 PCI
As a service provider under the Payment Card Industry Data Security Standard (PCI DSS), Swoogo will maintain PCI DSS compliance for as long as it processes, stores, or impacts the security of any cardholder data within their environment.
10.4 Data Breach
Upon becoming aware of a Data Breach, Swoogo shall, to the extent permitted by Law, notify Customer without undue delay and, where feasible, within twenty-four (24) hours, and in any event within seventy-two (72) hours, of becoming aware of the Data Breach. Swoogo will provide Customer with information relating to the Data Breach as it becomes known or as reasonably requested by Customer to enable Customer to comply with its obligations under Data Protection Laws. After becoming aware of a Data Breach, Swoogo will take reasonable steps to contain, investigate, and mitigate the Data Breach. Swoogo’s notification of or response to a Data Breach under this section will not be construed as an acknowledgement by Swoogo of any fault or liability with respect to the Data Breach.
10.5 Customer Security Obligations
Customer agrees that it is responsible for its own secure use of the Services, including, but not limited to, securing account credentials and protecting Customer Personal Data in transit.
10.6 Supplemental Measures
If the Standard Contractual Clauses apply to the Processing and transfer of Customer Personal Data, in connection with Clause 14 of the Standard Contractual Clauses, Swoogo agrees as follows:
10.6.1 Swoogo shall promptly notify Customer in the event that Swoogo, or Swoogo becomes aware that it or any of its Sub-processors, received a request from the government of any country that includes, or may include, access to Customer Personal Data, including, but not limited to, a request under the Uniting and Strengthening America by Providing Appropriate Tools to Restrict, Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”), the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (“USA FREEDOM Act”), the Clarifying Effective Overseas Use of Data Act (“CLOUD Act”), the Foreign Intelligence Surveillance Act of 1978 (“FISA”), or any similar legislation of any jurisdiction (“Disclosure Request”).
10.6.2 In connection with Clause 15 of the Standard Contractual Clauses, in the event that such a Disclosure Request is made, Swoogo shall:
(i) If, by Law, Swoogo is permitted to information Customer of the Disclosure Request, then provide reasonable assistance as Customer requires in connection with the Disclosure Request, including in connection with the initiation of legal proceedings by Customer;
(ii) If, by Law, Swoogo is not permitted to inform Customer of the Disclosure Request, then, Swoogo shall either: (a) information Customer that it is no longer able to provide the Services, or (b) to the extent permitted by Law, commence any potential legal proceeding against the initator of the Disclosure Request so as it resist the disclosure of the information requested in the Disclosure Request, and shall include Customer in such proceedings where permitted by Law; and
(iii) Have a continuing obligation to provide further information to Customer as any additional details become available.
10.6.3 When transferring Customer Personal Data, Swoogo shall use encryption certified against U.S. against U.S. Federal Information Processing Standard 140-2, Level 2, or equivalent industry standard. All emails between Customer and Swoogo shall utilize Transport Layer Security (TLS). Swoogo will encrypt all Customer Personal Data that resides on Swoogo’s system, services, backups, or other information systems, including Customer Personal Data that resides on systems and service of any third party with which Swoogo has subcontracted to store electronic data. Swoogo shall encrypt at rest using solutions that are certified against U.S. Federal Information Processing Standard 140-2, Level 2, or equivalent industry standard, and verify that the encryption keys and any keying material are stored with Swoogo rather than the third party storing the electronic data.
10.6.4 In the event that Customer Personal Data could be transferred to a mobile device, tablet, or laptop, Swoogo will implement, monitor, and maintain encryption and information leakage prevention tools using solutions that are certified against the U.S. Federal Information Processing Standard 140-2, Level 2, or equivalent industry standard, and verify that the encryption keys and keying material are not stored with any associated data.
Customer shall inform Swoogo of any Individual request pursuant to Data Protection Laws that Swoogo must comply with and provide the information necessary for Swoogo to comply with the request. The Services provide Customer with a number of self-service features, which Customer may use to respond to Individual requests as required (or as required of the third-party Controller) by Data Protection Laws. Only to the extent that it is not possible to respond using the self-service features, Swoogo shall provide reasonable assistance to Customer to enable Customer (or its third-party Controller) to respond to Individual rights requests under Data Protection Laws. In the event Swoogo receives a request directly from an Individual, Swoogo shall direct the Individual to submit the request directly to Customer. If required to respond under Laws to which Swoogo is subject, Swoogo shall, to the extent permitted by such Laws, inform Customer of that legal requirement before it responds to the request.
12.1 Authorized Sub-processors
Customer hereby grants Swoogo general authorization to engage Sub-processors in accordance with the provisions of this Section 12. Customer hereby approves the Sub-processors currently engaged by Swoogo and listed on Schedule C. Before engaging a new Sub-processor, Swoogo shall notify Customer fourteen (14) calendar days in advance of engaging any new Sub-processor to provide Customer with the opportunity to object to engaging the new Sub-processor on reasonable data protection grounds. If within fourteen (14) calendar days of receipt of such notice Customer notifies Swoogo in writing of any objections, Swoogo will use commercially reasonable efforts to change the provision of the Services in a manner that avoids the use of the proposed Sub-processor. Where such a change cannot be made, notwithstanding anything in the Agreement, Customer may, by written notice to Swoogo, terminate any Order Form(s) to the extent it relates to the Services that require use of the proposed Sub-processor.
12.2 Sub-processor Obligations
Swoogo shall enter into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA and complies with Data Protection Laws. Swoogo will remain responsible for such Sub-processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-processor that cause Swoogo to breach any of its obligations under this DPA. Swoogo, upon request, shall use reasonable efforts to provide Customer with copies of its Sub-processor agreements, provided that it may redact confidential or other information it is legally or contractually prohibited from disclosing to Customer.
13.1 Customer Authorization
Customer acknowledges and authorizes Swoogo (and its Sub-processors) to transfer and Process Customer Personal Data to and in the United States and elsewhere in the world that Swoogo processes Customer Personal Data. Swoogo shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.
13.2 European Data Transfers
To the extent legally required, with respect to transfers of Customer Personal Data protected by European Data Protection Laws, the Parties agree to abide by and Process Customer Personal Data is accordance with the applicable Standard Contractual Clauses, and by signing the Agreement the Parties are deemed to have signed such Standard Contractual Clauses. To the extent legally required, with respect to transfers of Customer Personal Data subject to the GDPR, Schedule D available at [https://swoogo.events/legal/data-processing-addendum/] and incorporated herein, shall apply if Customer is a Controller under the GDPR, and Schedule E available at [https://swoogo.events/legal/data-processing-addendum/] and incorporated herein, shall apply if Customer is a Processor under the GDPR. To the extent legally required, with respect to transfers of Customer Personal Data subject to the UK GDPR, Schedule D or Schedule E (as applicable) as modified by Schedule F available at [https://swoogo.events/legal/data-processing-addendum/] and incorporated herein, shall apply. To the extent legally required, with respect to transfers of Customer Personal Data subject to the Swiss Federal Act on Data Protection, Schedule D or Schedule E (as applicable) as modified by Schedule G available at [https://swoogo.events/legal/data-processing-addendum/] and incorporated herein, shall apply. The Standard Contractual Clauses are incorporated into and form and integral part of this DPA. To the extent that Standard Contractual Clauses are subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid, the Parties will cooperate in good faith to implement any additional measures that may reasonably be required to lawfully support the transfer. In the event of a conflict between the DPA, the Agreement, and Schedule D, Schedule E, Schedule F, or Schedule G (as applicable), the applicable Schedule(s) shall prevail.
Upon termination or expiration of the Agreement, Swoogo shall (at Customer’s election), delete or return to Customer all Customer Personal Data in its possession or control, except to the extent Swoogo is required or authorized to retain such Customer Personal Data by applicable Law, or to the extent that Customer Personal Data resides in backup archives. If Customer Personal Data resides in backup archives, Swoogo shall delete such Customer Personal Data in accordance with Swoogo’s standard retention and deletion policies and protect the Customer Personal Data from any further Processing. In all cases, Swoogo shall continue to apply this DPA to such Customer Personal Data for as long as it is retained by Swoogo. The Parties agree that the certification of deletion requirement in the Standard Contractual Clauses (if applicable) shall be provided to Customer upon Customer’s written request.
To the extent required by Data Protection Laws, Swoogo, taking into account the nature of the Processing and the information available to Swoogo, will provide reasonable assistance to Customer to carry out and document data protection impact assessments under Article 35 of the GDPR and data protection assessments under the CDPA and CTDPA, and prior consultations with Supervisory Authorities under Article 36 of the GDPR, upon Customer’s written request.
16.1 Assistance
Swoogo shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and/or Data Protection Laws and allow for and contribute to audits, including inspections, by Customer (or its authorized representative) in order to assess compliance with this DPA and/or Data Protection Laws.
16.2 Audit
Swoogo shall allow Customer and Customer’s authorized representatives to conduct audits or inspections to ensure compliance with the terms of this DPA and Data Protection Laws. To request an audit or inspection, Customer shall notify Swoogo at least three (3) weeks in advance of the proposed audit or inspection date and Customer and Swoogo will mutually agree upon the scope and timing of the audit or inspection. Any audit or inspection must be conducted during Swoogo’s regular business hours and subject to reasonable confidentiality procedures. In addition, audits and inspections shall be limited to once per year unless a Data Breach has occurred, or unless otherwise required by Data Protection Laws. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit and Customer shall be responsible and fully liable for the actions and omissions of its personnel and authorized representatives while on Swoogo’s premises and/or inspecting Swoogo’s systems and facilities.
Subject to Section 12 of the Standard Contractual Clauses (as applicable), each party’s liability, taken together in the aggregate, arising out of or relating to this DPA, shall be subject to the exclusions and limitations of liability set forth in the Agreement. No provision of this DPA shall be deemed to waive or limit the rights of an Individuals or Supervisory Authorities under applicable Data Protection Laws.
18.1 Parties
No one other than Customer or Swoogo (or its successors or permitted assignees) shall have any right to enforce any of the terms of this DPA.
18.2 Severability
Should any provision of this DPA be deemed invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either: (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible; or (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
18.3 Survival
The obligations set forth herein will survive termination of the Agreement and DPA for as long as Swoogo Processes Customer Personal Data.
18.4 Jurisdiction and Governing Law
The Parties hereby submit to the choice of law and jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.
18.5 Precedence
In the event of a conflict between the terms of this DPA and the Master Subscription Agreement with respect to the subject matter herein, the following order of precedence shall apply: (i) the Standard Contractual Clauses (if applicable); (ii) this DPA; and (iii) the Master Subscription Agreement.
18.6 Changes in Data Protection Laws
If any amendment is required for this DPA as a result of a change in applicable Data Protection Laws, then either Party may provide written notice to the other Party of that change in Law. The Parties will discuss and negotiate in good faith any necessary variations to the Agreement or this DPA to address such changes. If either Party gives notice under this Section 18.6, the Parties shall without undue delay discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the notice as soon as is reasonably practicable.
Details of Personal Data Processing
A. List of Parties
Data exporter:
Name: Customer named in the Agreement.
Address and contact information: As set out in the Agreement.
Activities relevant to the transfer: Swoogo provides the Services to Customer and, as a result, Processes Customer Personal Data as described in the Agreement and this DPA.
Signature and date: The Parties agree that execution of the Agreement shall constitute execution of the Standard Contractual Clauses, if applicable.
Role: Controller or Processor as described in Section 2 of the DPA.
Data importer:
Name: Swoogo LLC
Address: 1925 Century Park East, 17th Floor, Los Angeles, CA 90067
Contact information: Anthony Vega, Vice President of Finance; [email protected]
Activities relevant to the transfer: Swoogo provides the Services to Customer and, as a result, Processes Customer Personal Data as described in the Agreement and DPA.
Signature and date: The Parties agree that execution of the Agreement shall constitute execution of the Standard Contractual Clauses, if applicable.
Role: Processor
B. Description of Transfer
Categories of Individuals: The categories of Individuals are determined and controlled by Customer.
Categories of Personal Data: Customer uploads, submits, or otherwise provides Customer Personal Data to the Services, the extent of which is controlled and determined by Customer, in its sole discretion. The Customer Personal Data may include: (i) identification and contact information (name, email address, physical address) and internet activity information (IP address, usage data, cookie data, browser data).
Sensitive Personal Data transferred: Customer is prohibited from providing Sensitive Data for Processing under the Agreement. Swoogo does not want to, nor does it intentionally, collect or Process any Sensitive Data in connection with the Services.
The frequency of transfer: Continuous and as determined by Customer’s use of the Services.
Nature of the Processing: Swoogo will collect, receive, store, retain, transmit, delete (as provided in the DPA), use, and otherwise Process Customer Personal Data as needed to provide the Services.
Purpose of the Processing: The purpose of the Processing is to facilitate Swoogo’s provision of the Services to Customer in accordance with the Agreement, this DPA, and applicable Law. Swoogo provides event marketing software and other related services as described in the Agreement.
Period for which the Personal Data will be retained: Swoogo will Process Customer Personal Data for as long as required to provide the Services, and as described in Section 14 (Deletion or Return of Customer Personal Data) of this DPA.
Sub-processors: Same as above.
C. Competent Supervisory Authority
The Customer’s competent supervisory authority will be determined by Customer in accordance with Data Protection Laws.
Security Measures
Swoogo implements and maintains policies and procedures that include appropriate technical and organizational measures to ensure a level of security appropriate to: (i) protect the security, confidentiality, and integrity of Customer Personal Data; and (ii) protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of Customer Personal Data. Swoogo regularly monitors, evaluates, and assesses the effectiveness of the technical and organizational measures implemented. Swoogo’s technical and organizational measures include:
Risk Management
Swoogo maintains a risk management framework and conducts a yearly risk assessment of its environment and systems to understand its risks and applies appropriate controls to manage and mitigate risks before processing Customer Personal Data.
Access Controls
Swoogo implements the following access controls with respect to Customer Personal Data:
Access to Customer Personal Data is restricted to Swoogo personnel authorized to have such access in accordance with their job function and based on the principle of “least privilege.”
Physical Security:
Swoogo implements the following physical security measures with respect to Customer Personal Data:
Network Security
Swoogo’s network employs the following safeguards:
Vulnerability and Patch Management
All Swoogo devices are configured for automatic patching and application security patches are installed without unreasonable delay. Swoogo conducts regular testing and monitoring of the effectiveness of safeguards, controls, systems, including penetration testing.
Encryption
Swoogo encrypts Customer Personal Data as follows:
Personnel
Swoogo employs the following administrative safeguards for its personnel:
Sub-processors
Swoogo employs the following safeguards with respect to any Sub-processors that access, store, or transmit Customer Personal Data on its behalf:
Business Continuity
Swoogo maintains a disaster recovery and business continuity program for systems and facilities used to provide services. Such program is designed to ensure that Swoogo is able to continue providing services after its systems are damaged, destroyed, or otherwise unavailable for use. Swoogo’s disaster recovery and business continuity program is tested on an annual basis.
Incident Management
Swoogo maintains an incident management plan designed to promptly identify, prevent, investigate, mitigate, and address the impact of security incidents.
List of Approved Sub-processors
Standard Contractual Clauses
Controller to Processor
SECTION I – INTRODUCTION
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(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, 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
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 offenses (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 (4) (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 defense 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) The data importer has the data exporter’s general authorization 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 in accordance with Section 12 of the DPA to which these Clauses are appended, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfills 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 fulfill 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 authorized 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 organizational 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 authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) 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.
(c) Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing 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 authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organizational 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 minimization
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the laws of the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the Republic of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Annex I To The Standard Contractual Clauses
See Schedule A of the DPA to which these Clauses are appended.
Annex II To The Standard Contractual Clauses
See Schedule B of the DPA to which these Clauses are appended.
Annex III To The Standard Contractual Clauses
Not applicable.
Standard Contractual Clauses
(Processor to Processor)
SECTION I – INTRODUCTION
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(b) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(c) 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 – 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
(iii) Clause 9 – Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7
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 exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
(b) The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
(c) The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
(d) The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6. Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
(iii) the onward transfer is necessary for the establishment, exercise or defense 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 or the controller that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.
(c) The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
(d) The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
(f) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(g) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) 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 in accordance with Section 12 of the DPA to which these Clauses are appended, 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 controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
(b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing 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 authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organizational 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). The data exporter shall forward the notification to the controller.
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation, if appropriate in consultation with the controller. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the controller or the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1. Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
The data exporter shall forward the notification to the controller.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). The data exporter shall forward the information to the controller.
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2. Review of legality and data minimization
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. The data exporter shall make the assessment available to the controller.]
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
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 and the controller of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
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 the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the Republic of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Annex I To The Standard Contractual Clauses
See Schedule A of the DPA to which these Clauses are appended.
Annex II To The Standard Contractual Clauses
See Schedule B of the DPA to which these Clauses are appended.
Annex III To The Standard Contractual Clauses
Not applicable.
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Transfers Subject to Swiss Law
With respect to transfers of Personal Data from Switzerland, Schedule D or Schedule E (as applicable) shall be deemed to have the following differences to the extent required by the Swiss Federal Act on Data Protection:
(i) Where the transfer is subject exclusively to the FADP and not the GDPR, the supervisory authority is the Swiss Federal Data Protection and Information Commissioner.
Where the transfer is subject to both the FADP and the GDPR, the supervisory authority is the Swiss Federal Data Protection and Information Commissioner insofar as the transfer is governed by the FADP, and the supervisory authority is as set forth in the Standard Contractual Clauses insofar as the transfer is governed by the GDPR.