Data Processing Agreement

This Data Processing Agreement (“DPA”) dated as of November 27, 2023 is entered into by and between Customer (as defined in the applicable Statement of Work) and LK MShare LLC d/b/a MudShare and CaretX, a Delaware limited liability company (“LK MShare”). This DPA forms part of the Terms and Conditions between Customer and LK MShare (the “Principal Agreement”) and is subject to the Principal Agreement. Both parties will be referred to as the “Parties” and each, a “Party.” Any capitalized terms not defined in this DPA will have the meanings ascribed to them in the Principal Agreement, any applicable Statement of Work, or the Applicable Data Protection Laws.

By using the Platform and Services, Customer accepts and agrees to be bound by this DPA, and the person executing this DPA on behalf of Customer represents and warrants that he or she has the power and authority to bind Customer to this DPA. If Customer cannot or does not agree to or comply with being bound by this DPA, or the person executing it does not have authority to bind Customer or any other entity under this DPA, Customer must not provide Personal Data to LK MShare.

In the event of any conflict between any provisions of this DPA and the provisions of the Principal Agreement or any applicable Statement of Work, the provisions of this DPA will prevail over the conflicting Principal Agreement or Statement of Work provisions solely with respect to the Processing of Personal Data.

  1. DEFINITIONS
  • “Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party to this DPA.
  • “Applicable Data Protection Laws” means all applicable and binding privacy and data protection laws and regulations, including those of the European Union (“EU”), the European Economic Area (“EEA”), Switzerland, the United Kingdom (“UK”), Canada, Israel, and the United States of America. These include the GDPR, as transposed into domestic legislation of each EEA Member State (and the United Kingdom) and as amended, replaced or superseded from time to time, and laws implementing, replacing, or supplementing the GDPR and all laws applicable to the collection, storage, processing, and use of Customer’s Personal Data, including the CCPA.
  • “Authorized Users” means individual employees and independent contractors of Customer who have a business need and are authorized by Customer to use the Services.
  • “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq, and its implementing regulations, as it may be amended from time to time.
  • The terms Business, Business Purpose, Consent”, Consumer, “Controller”, “Customer”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing”, Service Provider, Sub-processor, “Supervisory Authority”, and “Third party” shall have the meanings ascribed to them in Article 4 of the GDPR or the CCPA, in cases where CCPA is applicable. “Service Provider” also encompasses Processor’s Sub-processor(s).
  • “Data Subject” means the identified or identifiable person to whom the Personal Data relates. For the avoidance of doubt, this term has the same meaning as ascribed to it in Article 4 of the GDPR or the CCPA, in cases where CCPA is applicable.
  • “EEA Member State” means the EU’s 27 member states, including Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden, and the three non-EU member countries, including Norway, Iceland, and Liechtenstein.
  • “GDPR” means the General Data Protection 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.
  • “Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person or Customer, and that is processed by LK MShare on behalf of Customer under this DPA and the Principal Agreement. For the avoidance of doubt, these terms have the same meaning as ascribed to them in Article 4 of the GDPR or the CCPA, in cases where CCPA is applicable.
  • “Platform” means LK MShare’s proprietary, hardware and software systems through which LK MShare will provide the Services to Customers and provide the portal through which Customers will engage with the Personal Data and other Services.
  • “Services” means the Services provided to the Customer by LK MShare under the Principal Agreement and any applicable Statement(s) of Work, including LK MShare’s texting solutions services, data services, and other communication services made available to Customers through its Platform.
  • “Standard Contractual Clauses” means (a) in respect of transfers of Personal Data subject to the GDPR, the Standard Contractual Clauses (“SCCs”) between Controllers and Processors, and between Processors and Processors, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, including all [Annexes I, II, and V] thereto, (”EU SCCs”); (b) in respect of transfers of Personal Data subject to the UK GDPR, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses of 21 March 2022 (version B.1.0), as incorporated into the EU SCCs through Annex III thereto (“UK Addendum”); and (c) in respect of transfers subject to the Federal Act on Data Protection (“FADP,” revised as of 25 September 2020), the terms set forth in [Annex IV] of the EU SCCs (“Switzerland Addendum”).
  • “Sub-processor” means any Third party that carries out specific Processing activities involving Personal Data under Processor’s instructions. For the avoidance of doubt, this term has the same meaning as ascribed to it in Article 4 of the GDPR or the CCPA, in cases where CCPA is applicable.
  • “UK GDPR” means the Data Protection Act 2018, as well as the GDPR as it is incorporated into part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy, and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
  • “UK Addendum” means the United Kingdom Addendum (International Data Transfer Addendum to the EU Commission Standard Contractual Clauses) set out at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf
  1. COMPLIANCE WITH APPLICABLE DATA PROTECTION LAWS
  • LK MShare and the Customer shall each comply with the provisions and obligations imposed on them by the Applicable Data Protection Laws and shall ensure that their employees, Affiliates, and Sub-processors observe the provisions of the Applicable Data Protection Laws.
  1. Controller and Processor
  • Roles of the Parties. For the purposes of this DPA, depending on the Principal Agreement and applicable Statement(s) of Work, either of or both LK MShare and Customer may be a Controller and/or a Processor regarding the Processing of Personal Data.
  • Controller’s Obligations. Controller, in its use of the Services and Controller’s instructions to the Processor, will comply with the Applicable Data Protection Laws, the Principal Agreement, and this DPA. The Controller warrants that:
  • the Processing of the Controller’s Personal Data is based on legal grounds for Processing, as may be required by Applicable Data Protection Laws and that it has made and shall maintain throughout the term of the Principal Agreement and any Statement of Work, all necessary rights, permissions, registrations, and Consents in accordance with and as required by Applicable Data Protection Laws with respect to the Processor’s Processing of the Controller’s Personal Data under this DPA and the Principal Agreement, including a Business Purpose for the Processing activities;
  • the Controller is entitled to and has all necessary rights, permissions, and Consents to transfer the Controller’s Personal Data to Processor and otherwise permit Processor to Process the Controller’s Personal Data on its behalf, so that Processor may lawfully use, Process, and transfer the Controller’s Personal Data in order to carry out the Services and perform Processor’s other rights and obligations under this DPA and the Principal Agreement;
  • the Controller will inform its Data Subjects about its use of Processors in Processing their personal data, to the extent required under Applicable Data Protection Laws; and
  • the Controller will respond in a reasonable time and to the extent reasonably practicable to enquiries by Data Subjects regarding the Processing of their Personal Data, and give appropriate instructions to the Processor in a timely manner.
  1. Details and Scope of Processing
  • Nature and Purpose. Under the Principal Agreement and applicable Statement(s) of Work, LK MShare provides certain Services such as texting solutions services, data services, and other communication services made available to Customers through its Platform, which involves the Processing of Personal Data. In addition, Customer may Process Personal Data to the extent it uses LK MShare’s data and data services purchased and accessed through the Platform. The Processing of Personal Data within the scope of the Principal Agreement and the DPA shall be carried out in accordance with the following stipulations and as required under Article 28(3) of the GDPR. The Parties may amend this information from time to time, as the Parties may reasonably consider it necessary to meet those requirements. Processor will Process Personal Data for the following purposes:
  • providing the Services to Customer;
  • using the Services and Platform provided by LK MShare;
  • performing the Principal Agreement, applicable Statement(s) of Work, this DPA, and/or any other contract executed by and between the Parties;
  • acting upon Controller’s instructions, provided such instructions are consistent with the terms of the Principal Agreement and this DPA, and pertain to the manner in which the Processing will be performed;
  • sharing Personal Data with Third parties in accordance with Customer’s instructions and/or pursuant to Customer’s use of the Services;
  • complying with applicable laws and regulations as required under the laws applicable to Processor (including Applicable Data Protection Laws), and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Processor will inform Controller of any such legal requirement before Processing, unless such law or order prohibits disclosing such information; and
  • all tasks related to any of the above.
  • Types of Personal Data to be Processed. Customer may submit Personal Data to the Platform and in connection with using the Services, the types and extent of which are determined and controlled by Customer in its sole discretion.
  • Subject Matter and Duration. The subject matter of Processor’s Processing of Personal Data is LK MShare’s performance of the Services under the Principal Agreement, any applicable Statement(s) of Work, and this DPA. In addition, in situations where Customer acts as a Processor by Processing Personal Data, the subject matter of the Processing is Customer’s use of LK MShare’s Platform and Services under the Principal Agreement, any applicable Statement(s) of Work, and this DPA. Subject to any section of the Principal Agreement, applicable Statement(s) of Work, and/or the DPA addressing the duration of the Processing and the consequences of the expiration or termination thereof, Processor will Process Personal Data and provide Services for the duration of the Principal Agreement and applicable Statement(s) of Work, unless the Parties otherwise agree in writing.
  • Categories of Data Subjects. Categories of Data Subjects include senders and recipients of communication or any other individual with whom Customer communicates through the Platform or the Services.
  • Details and Scope of the Processing. Processor shall only engage in the Processing of the Controller’s Personal Data (i) for the purposes of fulfilling its obligations under the Principal Agreement and (ii) in accordance with the documented instructions described in this DPA or as otherwise instructed by the Controller from time to time. Controller’s instructions shall be documented in the applicable Statement of Work, order, services description, other written communication, or as directed by Controller using the Services.
  • Where Processor reasonably believes that a Controller’s instruction is contrary to the provisions of the Principal Agreement or this DPA, or that it infringes the GDPR or other Applicable Data Protection Laws, it shall inform the Controller without delay. In both cases, Processor shall be authorized to defer the performance of the relevant instruction until it has been amended by Controller or is mutually agreed by both Controller and Processor.
  • Processor will inform Controller without undue delay if, in Processor’s reasonable opinion, an instruction given by Controller for the Processing of Personal Data infringes Applicable Data Protection Laws, unless Processor is prohibited from notifying Controller under Applicable Data Protection Laws. It is hereby clarified that Processor has no obligation to assess whether Controller’s instructions infringe any Applicable Data Protection Laws.
  • Controller is solely responsible for its utilization and management of Personal Data submitted to or transmitted by the Platform or through the Services, including: (i) verifying recipient’s information such as phone number or address and that they are correctly entered into the Platform (ii) reasonably notifying any recipient of the insecure nature of email or messaging as a means of transmitting Personal Data (as applicable), (iii) reasonably limiting the amount or type of information disclosed through the Platform or Services, (iv) encrypting any Personal Data transmitted through the Platform or Services where appropriate or required by Applicable Data Protection Laws (such as through the use of encrypted attachments, PGP toolsets, or S/MIME). When the Controller decides not to configure mandatory encryption, Controller acknowledges that the Services may include the transmission of unencrypted email in plain text over the public internet and open networks. Information uploaded to the Platform, including message content, is stored in an encrypted format when processed through the Platform.
  • Independent Data Controller Exclusion. Notwithstanding any other provision herein, when Processing Personal Data in the course of carrying out its necessary business functions and providing communication services as part of the Services, including necessary measures to prevent spam and fraud and control, security, and maintenance of its network, management of its business and compliance functions, and consistent with its obligations under applicable laws; regardless of whether Customer acts as a Controller or Processor, LK MShare acts as an independent data Controller, and not as joint Controller. The Parties acknowledge that when the Parties are acting as independent data Controllers, they are not Processing Personal Data on behalf of each other.
  1. CONFIDENTIALITY
  • LK MShare and Customer will ensure that each of their employees, Affiliates, and Sub-processors engaged in the Processing of Personal Data have committed themselves to confidentiality or are otherwise under a statutory obligation of confidentiality and are trained with the relevant security and data protection requirements.
  1. DATA SUBJECT REQUESTS
  • When LK MShare or Customer is acting as a Processor and receives a complaint, inquiry, or request made by Data Subjects or individuals exercising their rights under Applicable Data Protection Laws, such Party will notify the other Party (i.e., the Controller) or refer the Data Subject to such other Party. These requests may include requests of access, rectification, restriction of Processing, erasure, data portability, or objection to the Processing; to not be subject to automated individual decision making; to opt-out of the sale of Personal Information; or to not to be discriminated against. Taking into account the nature of the Processing, Processor shall assist Controller, by appropriate technical and organizational measures, insofar as this is reasonably possible, to enable Controller to respond to a Data Subject’s request. Processor may refer Data Subjects to a designated Controller administrator for the handling of such requests or advise them on how to use any self-exercising features available within the Platform or otherwise.
  1. SECURITY MEASURES & AUDITS
  • Controls for the Protection of Personal Data. Processor will maintain appropriate industry-standard technical and organizational measures for protection of Personal Data Processed pursuant to this DPA, including measures against unauthorized or unlawful Processing, and against accidental or unlawful destruction, loss, alteration, damage, or unauthorized disclosure of, or access to, Personal Data, and for ensuring confidentiality and integrity of Personal Data. Upon Controller’s reasonable request, Processor will reasonably assist Controller, at Controller’s cost, with ensuring compliance with the obligations under Articles 32 to 36 of the GDPR, taking into account the nature of the Processing and the information available to Processor. Processor shall, in relation to the Controller’s Personal Data, (a) take and document reasonable and appropriate measures in relation to the security of the Controller’s infrastructure and the Platforms used to provide the Services or process Personal Data as described in the Principal Agreement, and (b) on reasonable request, at the Controller’s cost, assist the Controller in ensuring compliance with the Controller’s obligations under Article 32 of the GDPR.
  • Audits and Inspections. Processor will make available to Controller, upon Controller’s written request provided at least fourteen (14) days in advance, at reasonable intervals (but no more than once every twelve (12) months), information that is reasonably necessary to demonstrate compliance with this DPA.
  • Controller, or a mandated Third party auditor, may upon written reasonable request conduct an inspection in relation to the Processing of the Controller’s Personal Data by Processor and to the extent necessary according to Applicable Data Protection Laws and without interrupting Processor’s business operations and ensuring strict confidentiality, provided that Controller or the Third party auditor is not a competitor of Processor. In the event of an audit or inspection conducted pursuant to this Section 7.2, Controller will ensure that it (and any of its Third party auditors) will not cause (or, if it cannot avoid, minimize) any damage, injury, or disruption to Processor’s operations, premises, equipment, personnel, and business, as applicable, while conducting such audit or inspection. An audit as described within this Section 7.2 shall be carried out at Controller’s cost and expense.
  • Processor may satisfy its obligations under this section by answering Controller’s questionnaire-based audits and/or by providing Controller with attestations, certifications, and summaries of audit reports conducted by accredited Third party auditors solely related to LK MShare’s compliance with this DPA.
  • The audit right described in this Section 7.2 will become applicable for Controller, in case Processor has not provided sufficient evidence of its compliance with the provisions of this DPA and then will only apply to the extent that the Principal Agreement does not otherwise provide Controller with audit rights that meet the relevant requirements of Applicable Data Protection Laws (including, where applicable, Article 28(3)(h) of the GDPR or the UK GDPR). If and to the extent that the SCCs apply, nothing in this Section 7.2 varies or modifies the SCCs nor affects any Supervisory Authority or Data Subject’s rights under the SCCs.
  • Any information relating to audits, inspections, and the results therefrom, including the documents reflecting the outcome thereof, will only be used by Controller to assess Processor’s compliance with this DPA and will not be used for any other purpose or disclosed to any Third party without Processor’s prior written approval. Upon Processor’s first request, Controller will transfer to Processor any records or documentation that were provided by Processor or collected and/or generated by Controller (or any of its auditors) in the context of the audit and/or the inspection.
  1. DATA INCIDENT MANAGEMENT AND NOTIFICATION
  • Data Management Obligations. Processor maintains internal security incident management policies and procedures. Processor shall notify the Customer without undue delay, to the extent required under Applicable Data Protection Laws, once Processor becomes aware of a Personal Data breach affecting Controller’s Personal Data, including the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data Processed by Processor on behalf of Controller. Processor shall, taking into account the nature of the Processing and the information available to Processor, use commercially reasonable efforts to provide the Controller with sufficient information to allow the Controller at the Controller’s cost, to meet any obligations to report or inform regulatory authorities, Data Subjects, and other entities of such Personal Data breach to the extent required under Applicable Data Protection Laws. The obligations provided in this Section 1 will not apply to data breaches that are caused by Controller, its Authorized Users, or anyone who uses the Services or otherwise processes Personal Data on Controller’s behalf.
  • Controller Obligations. Controller will not make, disclose, release, or publish any finding, admission of liability, communication, notice, press release, or report concerning any data incident or breaches that directly or indirectly identifies Processor (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Processor’s prior written approval, unless, and solely to the extent that, Controller is compelled to do so pursuant to Applicable Data Protection Laws. In the latter case, unless prohibited by such laws, Controller will provide Processor with reasonable prior written notice to provide Processor with the opportunity to object to such disclosure, and in any case, Controller will limit the disclosure to the minimum scope required by such laws.
  1. RETURN AND DELETION OF PERSONAL DATA
  • Controller Requests. The Controller may, by written notice to Processor no later than at the time of termination of the Principal Agreement, request the return and/or certificate of deletion of all copies of Controller’s Personal Data in the control or possession of Processor and Sub-processors. Processor shall provide a copy of Controller’s Personal Data in a form that can be read and processed further.
  • Controller Compliance. Within ninety (90) days following termination of Controller’s account for accessing the Platform or related to the Services described in any Statement of Work, Processor shall delete all Personal Data processed pursuant to this DPA, unless Controller requests the return of Personal Data as described in Section 9.1 above. This provision shall not affect potential statutory duties of the Parties to preserve records for retention periods set by law, statute, or contract.
  • Costs Associated. Any additional cost(s) arising in connection with the return of Personal Data after the termination or expiration of the Principal Agreement shall be borne by the Controller.
  1. CROSS-BORDER DATA TRANSFERS
  • Transfers from the EEA, UK, and Switzerland to Countries that Offer an Adequate Level of Data Protection. Personal Data may be transferred from EEA Member States, Switzerland, and the UK to countries that offer an adequate level of data protection under or pursuant to adequacy decisions published by the relevant EEA, UK, or Swiss authorities (“Adequacy Decisions”), as applicable, without the need for any further safeguard.
  • Transfers from the EEA, UK, and Switzerland to Other Countries. If Processor’s Processing of Personal Data includes a transfer (either directly or via onward transfer):
  • from the EEA to other countries that have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognized by Applicable Data Protection Laws (as may be adopted by Processor in its own discretion) (“EEA Transfer”), the terms set forth in the EU SCCs will apply;
  • from the UK to other countries that have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognized by Applicable Data Protection Laws (as may be adopted by Processor in its own discretion) (“UK Transfer”), the terms set forth in the UK Addendum will apply;
  • from Switzerland to other countries that have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognized by Applicable Data Protection Laws (as may be adopted by Processor in its own discretion) (“Switzerland Transfer”), the terms set forth in the Switzerland Addendum will apply; and
  • the terms set forth in Annex V of the EU SCCs (Additional Safeguards) will apply to any EEA Transfer, UK Transfer, and Switzerland Transfer to which the SCCs apply.
  • Transfers from Other Countries. If the Processing of Personal Data by Processor includes a transfer of Personal Data by and/or mandated by Controller to Processor from any other country or jurisdiction that mandates a particular compliance mechanism for the lawful transfer of such data, Controller will notify Processor of any applicable requirements, and the Parties may seek to make any necessary amendments to this DPA in accordance with provisions of Section 14.1 below.
  1. SUB-PROCESSORS
  • Appointment of Sub-processors. The Controller hereby gives a general authorization to Processor to appoint Sub-processors in accordance with this Section 11 and respective Exhibits. Processor will ensure that Sub-processors are bound by written agreements that require them to provide at least the level of data protection required of Processor by this DPA. The Controller also gives Processor a specific authorization to continue to use those Sub-processors already engaged at the date of this DPA.
  • Agreements with Sub-processors. Processor or Processor’s Affiliate has entered into a written agreement with each existing Sub-processor, and will enter into a written agreement with each new Sub-processor, that includes the same or materially similar Personal Data protection obligations as provided in this DPA, and particular obligations to implement appropriate technical and organizational measures such that the Processing will meet the GDPR’s requirements. If a Sub-processor fails to fulfill its data protection obligations concerning its Processing of Personal Data, Processor will remain responsible to Controller for the performance of the Sub-processor’s obligations.
  • Objection to New Sub-processors. Processor shall notify the Controller in writing of the proposed addition or replacement of any Sub-processor thirty (30) days’ in advance of any intended changes. If, within ten (10) business days of receipt of that notice, Controller notifies Processor in writing of any objections on reasonable grounds to the proposed appointment, Processor shall not appoint that proposed Sub-processor until reasonable steps have been taken to address the objections raised by Controller and Controller has been provided with a reasonable written explanation of the steps taken. If the Parties are not able to resolve the appointment of a Sub-processor within a reasonable period, either party shall have the right to terminate the Principal Agreement for cause. If Controller does not object in the manner prescribed above, Controller will be deemed to have accepted use of such new Sub-processor.
  1. AUTHORIZED AFFILIATES
  • Contractual Relationship. The Parties acknowledge and agree that, by executing this DPA, Controller enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its authorized Affiliates, in which case each authorized Affiliate agrees to be bound by Controller’s obligations under this DPA, if and to the extent that Processor processes Personal Data on the behalf of such authorized Affiliates, thus qualifying them as a Controller with respect to the Personal Data Processed on their behalf. All access to and use of the Services by Controller’s authorized Affiliates must comply with the Principal Agreement and this DPA, and any breach of the terms and conditions by an authorized Affiliate will be deemed a breach by Controller.
  • Communication. Controller will remain responsible for coordinating all communication with Processor under the Principal Agreement and this DPA, and will be entitled to make and receive any communication in relation to this DPA on behalf of its authorized Affiliates.
  1. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
  • Processor shall, taking into account the nature of the Processing and the information available, provide reasonable assistance to Controller at Controller’s cost, with any data protection impact assessments and prior consultations with Supervisory Authorities or other competent regulatory authorities as required for Controller to fulfill its obligations under Applicable Data Protection Laws, to the extent Controller does not otherwise have access to the relevant information and to the extent such information is available to Processor.
  1. Modifications
  • Each Party may, by providing at least forty-five (45) calendar days’ prior written notice to the other Party, request any modification to this DPA, if such modification is required as a result of any change in Applicable Data Protection Laws, to allow Processing of Controller’s Personal Data to be made (or continue to be made) in compliance with such Applicable Data Protection Laws. Pursuant to such notice, the Parties will use commercially reasonable efforts to accommodate such required modification and negotiate in good faith with a view to agreeing and implementing such modification or an alternative modification designed to address the requirements under Applicable Data Protection Laws, as identified in Controller or Processor’s notice, as soon as reasonably practicable. In addition, LK MShare may amend this DPA from time to time without notice, provided that any such amendment is not adverse in any material aspect with respect to Customer’s rights or LK MShare’s obligations under this DPA (i.e., error and typo fixing, making technical adjustments, or for any other reasons as Processor deems necessary). For clarity, if LK MShare makes any material adverse amendment to Customer’s rights or LK MShare’s obligations, LK MShare will notify Customer by posting an announcement on the Platform, via the Service, and/or by notifying Customer via email.
  1. Governing law and jurisdiction
    • The Parties hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims however arising under this DPA, including disputes regarding its existence, validity, or termination or the consequences of its nullity.
    • This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the jurisdiction stipulated for this purpose in the Principal Agreement.
    • Notwithstanding the forementioned under Sections 1 and 15.2, all obligations arising out of or in connection with the Standard Contractual Clauses incorporated into this DPA shall be governed by the laws of the EEA Member State, as required for the validity of those Standard Contractual Clauses pursuant to European Commission’s Decision 2021/914/EU of June 4, 2021.
  2. Termination
    • With the termination of the Principal Agreement, this DPA and the Standard Contractual Clauses will terminate upon the fulfillment of LK MShare’s obligation to delete the personal data under processing in accordance with Section 9.
    • Any amendment or variation to this DPA shall not be binding on the Parties unless set out in writing and signed by authorized representatives of each of the Parties.

Last updated November 27, 2023

 

 

 

 

 

 

 

 

 

 

 

 

 

STANDARD CONTRACTUAL CLAUSES

Controller to Processor

SECTION I

Clause 1

Purpose and scope

(a)        The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of 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 the Data Processing Agreement (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 the Data Processing Agreement (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c)        These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d)       The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a)        These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b)       These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

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

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

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

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

(iv)      Clause 12(a), (d) and (f);

(v)       Clause 13;

(vi)      Clause 15.1(c), (d) and (e);

(vii)     Clause 16(e);

(viii)    Clause 18(a) and (b).

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(a)        An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by agreeing to the Data Processing Agreement.

(b)       Once it has agreed to the Data Processing Agreement, 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 the Data Processing Agreement.

(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 its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4   Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5   Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6   Security of processing

(a)        The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b)       The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

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

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

 

 

 

8.7   Sensitive data

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

8.8   Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i)        the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii)       the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii)      the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

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

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9   Documentation and compliance

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

(b)       The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c)        The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d)       The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e)        The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

 

Clause 9

Use of sub-processors

(a)        OPTION 1: SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least 60 days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter will be kept up to date and can be found in this link: https://mudshare.notion.site/List-of-Sub-Processors-1084157c3edd43a087ec7b7b4159070b?pvs=4

OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

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

(c)        The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d)       The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e)        The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

 

 

 

 

Clause 10

Data subject rights

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

(b)       The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c)        In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

 

 

Clause 11

Redress

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

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

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

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

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

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

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

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

Clause 12

Liability

(a)        Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b)       The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c)        Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d)       The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e)        Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f)        The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

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

 

 

Clause 13

Supervision

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.

(b)       The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

 

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

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

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

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

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

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

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

Clause 15

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

15.1     Notification

(a)        The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i)        receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii)       becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

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

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

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

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

15.2     Review of legality and data minimisation

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

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

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

 

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a)        The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)       In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c)        The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i)        the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii)       the data importer is in substantial or persistent breach of these Clauses; or

(iii)      the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

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

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

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of 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 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

  1. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Categories of personal data transferred

You may submit Personal Data to the Services and which may include but is not limited to the following categories of Personal Data

  1. Contact Information (as defined in the General Terms).
  2. Any other Personal Data submitted by, sent to, or received by you, or your end users, via the Service

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

The parties do not anticipate the transfer of sensitive data.

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

Continuous

Nature of the processing

Purpose(s) of the data transfer and further processing

We will process Personal Data as necessary to provide the Services pursuant to the Agreement, as further specified in the Statement of Work, and as further instructed by you in your use of the Services.

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

Subject to the ‘Return and Deletion of Personal Data’ section of this Data Processing Agreement, we will process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

  1. COMPETENT SUPERVISORY AUTHORITY

For the purposes of the Standard Contractual Clauses, the supervisory authority that will act as competent supervisory authority will be determined in accordance with GDPR.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

The data importer will implement and maintain security standards at least as protective as those set out in [PLEASE LIST THE DOCUMENT WHERE SECURITY STANDARDS ARE DOCUMENTED].

The technical and organisational measures to be taken by Subprocessors are described in the “Subprocessor Security” section. Additionally, the technical and organisational measures taken by the data importer to 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 are set out in Section II, Clause 9 (Use of sub-processors).

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

Measures of pseudonymisation and encryption of personal data both in storage and while being transmitted

Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services

Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

Measures for user identification and authorisation

Measures for the protection of data during transmission

Measures for the protection of data during storage

Measures for ensuring physical security of locations at which personal data are processed

Measures for ensuring events logging

Measures for ensuring system configuration, including default configuration

Measures for internal IT and IT security governance and management

Measures for certification/assurance of processes and products

Measures for ensuring data minimisation

Measures for ensuring data quality

Measures for ensuring limited data retention

Measures for ensuring accountability

Measures for allowing data portability and ensuring erasure

 

We require that all sub processors provide written certification or attestations from a reputable firm of achieving at minimum the AICPA SOC 2 Type 1 certification or measures to protect privacy that match or exceed our own as stated above.  In the case where the sub processor does not have  SOC 2 Type 1 certification then we will require they fill out a security assessment questionnaire where they will attest to maintaining measures that match or exceed our own.  If they don’t have certain measures in place then we will require other satisfying controls that mitigate the risk of the absence of a certain measure.