This Data Protection Addendum (“Addendum”) forms part of the Service Agreement (“Principal Agreement”) between ONSOLVE, LLC and its Affiliates ("OnSolve") and the company that executed the Principal Agreement ("Company") acting on its own behalf and as agent for any Company Affiliate and is hereby incorporated to it by reference, unless Company has signed a separate written data protection agreement with OnSolve.
- Definitions.
- Capitalized terms not otherwise defined below shall have the meaning given to them in the Principal Agreement.
- In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
- "Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership of a party to this Addendum, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
- "Company Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of a Company pursuant to or in connection with the Principal Agreement;
- "Company Personal Data Breach" means a Personal Data Breach affecting Company Personal Data;
- "Contracted Processor" means OnSolve or a Subprocessor;
- "Data Protection Laws" means UK and EU Data Protection Laws, the California Consumer Privacy Act (the “CCPA”), the California Privacy Rights Act (CPRA) (when it enters into force), and, to the extent applicable, the data protection or privacy laws of any other country or jurisdiction;
- "UK and EU Data Protection Laws" means all laws and regulations of the United Kingdom, the European Union, the European Economic Area (EEA), and their member states, applicable to the processing of Personal Data under the Principal Agreement, as amended or replaced from time to time, including without limitation in respect of the European Union the GDPR and in respect of the United Kingdom the UK GDPR;
- "GDPR" means EU General Data Protection Regulation 2016/679;
- "Restricted Transfer" means:
- a transfer of Company Personal Data from Company to a Contracted Processor; or
- an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor.
In each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 6.4.3 or 12 below;
- "Services" means the services and other activities to be supplied to or carried out by or on behalf of OnSolve for Company pursuant to the Principal Agreement;
- "Standard Contractual Clauses" means: in respect of transfers of personal data which are subject to the UK GDPR, the contractual clauses set out in Schedule 4, amended as indicated (in square brackets and italics) in that Schedule and under section 13.4; and, in respect of transfers of personal data which are subject to the GDPR, the contractual clauses set out in Schedule 5 amended as indicated (in square brackets and italics) in that Schedule and under section 13.4;
- "Subprocessor" means any entity appointed by or on behalf of OnSolve to Process Personal Data on behalf of Company in connection with the Principal Agreement;
- “UK GDPR” means the GDPR, as it forms 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
- The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR or UK GDPR (as applicable), and their cognate terms shall be construed accordingly.
- The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
- Processing of Company Personal Data
- The Company warrants to OnSolve that:
- it has all necessary rights to authorise OnSolve to process Company Personal Data in accordance with this Agreement and the Data Protection Laws; and
- its instructions to OnSolve relating to processing of Company Personal Data will not put OnSolve in breach of Data Protection Laws.
- Schedule 1 to this Addendum sets out the Processing instructions, as required by article 28(3) of the GDPR and the UK GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Nothing in Schedule 1 (including as amended pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.
- OnSolve shall:
- comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
- not further collect, sell, use, retain, disclose or otherwise Process Company Personal Data other than on the Company’s documented instructions pursuant to the Company’s specified business purpose, unless Processing is required by applicable laws to which the relevant Contracted Processor is subject, in which case OnSolve shall to the extent permitted by applicable laws inform the Company of that legal requirement before the relevant Processing of that Personal Data. Without limiting the foregoing, OnSolve shall not sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means, any Company Personal Data to another business or a third party for monetary or other valuable consideration. Additionally, the Provider will not combine Company Personal Data with Personal Data it receives from or on behalf of another person or persons, or that it collects from its own interactions;
- OnSolve hereby certifies that it understands its contractual restrictions under Section 2.3 and shall comply with them.
- The Company warrants to OnSolve that:
- OnSolve
OnSolve shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with applicable laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
- Security
- As further detailed in Schedule 2, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, OnSolve shall in relation to the Company Personal Data implement appropriate technical and organizational measures designed to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR and the UK GDPR.
- Subprocessing
- OnSolve may continue to use those Subprocessors listed in Schedule 3.
- OnSolve shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within twenty (20) business days of receipt of that notice, Company notifies OnSolve in writing of any objections (on reasonable grounds) to the proposed appointment:
- OnSolve shall work with Company in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and
- where such a change cannot be made within forty-five (45) days from OnSolve 's receipt of Company's notice, notwithstanding anything in the Principal Agreement, Company may by written notice to OnSolve with immediate effect terminate the Principal Agreement to the extent that it relates to the Services which require the use of the proposed Subprocessor.
- With respect to each Subprocessor, OnSolve shall ensure that Subprocessor is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR.
- Before the Subprocessor first processes Agreement Personal Data, OnSolve shall carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data as required by Data Protection Laws.
- Data Subject Rights
- Taking into account the nature of the Processing, OnSolve shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company’s obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
- OnSolve shall:
- promptly notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
- ensure that the Contracted Processor does not respond to that request, other than to confirm necessary details if required, except on the documented instructions of Company or as required by applicable laws to which the Contracted Processor is subject, in which case OnSolve shall to the extent permitted by applicable law inform Company of that legal requirement before the Contracted Processor responds to the request.
- Company Personal Data Breach
- OnSolve shall notify Company without undue delay upon OnSolve becoming aware of a Company Personal Data Breach.
- OnSolve shall co-operate with Company and take such reasonable commercial steps to assist in the investigation, mitigation and remediation of each such Company Personal Data Breach.
- Data Protection Impact Assessment and Prior Consultation
- OnSolve shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of the Company by article 35 or 36 of the GDPR, UK GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
- Deletion of Company Personal Data
- At the option of the Company, OnSolve will delete or return to the Company all Company Personal Data after the end of the provision of Services relating to processing, and delete any remaining copies. OnSolve will be entitled to retain any Company Personal Data required to comply with any applicable law or which it is required to retain for insurance, accounting, taxation or record keeping purposes.
- Audit rights
- OnSolve shall make available to the Company on request all information necessary to demonstrate compliance with this Addendum and will allow for and contribute to audits, including inspections, conducted by the Company or another auditor mandated by the Company, provided that the Company gives OnSolve reasonable prior written notice of each such audit and that each audit is carried out upon execution of a specific nondisclosure agreement, and at the Company’s cost, during regular business hours, so as to cause the minimum disruption to OnSolve’s business and without the Company or its auditor having any access to any data belonging to a customer other than the Company. For the avoidance of doubt, any materials disclosed during such audits and the results of and/or outputs from such audits will be kept confidential by the Company.
- OnSolve will only be required to submit to one audit or inspection in any calendar year, except for any additional audits or inspections which:
- Company reasonably considers necessary because a Company Personal Data Breach, or
- Company is required to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory
- Information and audit rights of the Company only arise under section 10.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR and the UK GDPR).
- Restricted Transfers
- Subject to section 11.3, the Company (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") hereby enter into:
- in respect of a Restricted Transfer of Customer Personal Data which is subject to the UK GDPR, the Standard Contractual Clauses set out in Schedule 4 in respect of any Restricted Transfer from the Company to that Contracted Processor; and
- in respect of a Restricted Transfer of Customer Personal Data which is subject to the GDPR, the Standard Contractual Clauses set out in Schedule 5 in respect of any Restricted Transfer from the Company to that Contracted Processor.
- The relevant Standard Contractual Clauses shall come into effect under section 11.1 on the later of:
- the data exporter becoming a party to them;
- the data importer becoming a party to them; and
- commencement of the relevant Restricted Transfer.
- Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
- Schrems II Clauses:
- Subject to the limitations of Clauses 11.4.2 through 11.4.4 below, for Restricted Transfers which are subject to UK GDPR (see 11.1.1.), OnSolve shall promptly notify the Company if it: (i) receives a legally binding request by a public authority for disclosure of Company Personal Data transferred pursuant to this Addendum; such notification shall include information about the Company 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 Company Personal Data processed pursuant to this Addendum; such notification shall include all information available to OnSolve.
- If OnSolve is prohibited from notifying the Company, OnSolve agrees to use its commercially reasonable efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. OnSolve agrees to use commercially reasonable efforts to
- OnSolve agrees to use commercially reasonable efforts to challenge the request if, after a careful assessment, it concludes that there are grounds under U.S. federal or state law to do so. When challenging a request, OnSolve shall seek interim measures with a view to suspend the effects of the request until the court or arbiter of the request has decided on the merits. It shall not disclose the Company Personal Data requested until required to do so under the applicable procedural rules.
- To the extent permissible under the laws of the country of destination, OnSolve agrees to provide or make available to the Company, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received in relation to this Addendum (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.).
- Subject to section 11.3, the Company (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") hereby enter into:
- General Terms
Governing law and jurisdiction
- Without prejudice to clauses 17 (Governing law) and 18 (Choice of forum and jurisdiction) of the Standard Contractual Clauses contained in Schedule 5, and clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses contained in Schedule 4:
- the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
- this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
- Nothing in this Addendum reduces OnSolve's obligations under the Principal Agreement in relation to the protection of Personal Data or permits OnSolve to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
- Subject to section 12.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
- Company may:
- by at least 30 (thirty) calendar days’ written notice to OnSolve from time to time make any variations to the Standard Contractual Clauses (including any relevant Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
- propose any other variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
- If Company gives notice under section 12.4.1:
- Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by OnSolve to protect the Contracted Processors against additional risks associated with the variations made under section 12.4.1.
- If Company gives notice under section 12.4.2, the parties shall promptly 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 Company's notice as soon as is reasonably practicable.
- Neither Company nor OnSolve shall require the consent or approval of any Company Affiliate or OnSolve Affiliate to amend this Addendum pursuant to this section 12.5 or otherwise.
- 12.8 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum 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, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
Order of precedence
Changes in Data Protection Laws, etc.
Severance
- Without prejudice to clauses 17 (Governing law) and 18 (Choice of forum and jurisdiction) of the Standard Contractual Clauses contained in Schedule 5, and clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses contained in Schedule 4:
On behalf of COMPANY
Company’s acceptance of the Principal Agreement shall constitute its agreement to this Addendum, its Schedules and Appendices.
On behalf of ONSOLVE
OnSolve’s acceptance of the Principal Agreement shall constitute its agreement to this Addendum, its Schedules and Appendices.
SCHEDULE 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Schedule 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR or UK GDPR (as applicable).
Subject matter and duration of the Processing of Company Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Principal Agreement and this Addendum.
The nature and purpose of the Processing of Company Personal Data
The processing of Company Personal Data required to provide those services set out in the Principal Agreement.
The types of Company Personal Data to be Processed
Name, business contact details (work telephone number, cell phone number, e-mail address and office address and location), personal contact details (home telephone number, cell phone number, other telephone, e-mail address and physical address), geolocation, and employee ID.
The categories of Data Subject to whom the Company Personal Data relates
Categories of Data Subjects, as determined by the Company, may include company representatives and (end) users, such as employees, job applicants, contractors, collaborators, partners, suppliers and customers of the Company. Data Subjects also may include consumers and individuals attempting to communicate or transfer personal data to users of the services to be provided under the Principal Agreement.
The obligations and rights of Company and Company Affiliates
The obligations and rights of Company and Company Affiliates are set out in the Principal Agreement and this Addendum.
SCHEDULE 2: TECHNICAL AND ORGANIZATIONAL MEASURES
Described in OnSolve’s Security Standards, which shall be provided to Company upon written request. OnSolve’s Security Standards may be updated from time to time; however, with respect to the level of security protocols and resulting level of protection of data, OnSolve’s Security Standards shall not be materially degraded.
SCHEDULE 3: APPROVED SUB-PROCESSORS
OnSolve’s Sub-processor list is available at https://www.onsolve.com/company/security/subprocessors/
SCHEDULE 4: STANDARD CONTRACTUAL CLAUSES (where UK GDPR applies)
These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law1 (otherwise).
If these Clauses are not governed by the law of a Member State, the terms "Member State" and "State" are replaced, throughout, by the word "jurisdiction".
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
[The gaps below are populated with details of the Company:]
Name of the data exporting organisation: Set forth in the Principal Agreement
Address: Set forth in the Principal Agreement
Tel.: Set forth in the Principal Agreement
Fax: Set forth in the Principal Agreement
E-mail: Set forth in the Principal Agreement
Other information needed to identify the organisation
……………………………………………………………
(the data exporter)
And
Name of the data importing organisation: OnSolve, LLC
Address: 6240 Avalon Boulevard, Alpharetta, GA 30009
Tel.: 866.939.0911
Fax: 386.676.1127
E-mail: thirdpartysecurity@onsolve.com
Other information needed to identify the organisation:
……………………………………………………………
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Background
The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
Clause 1
Definitions
For the purposes of the Clauses:
- 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
-
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
- 1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Subprocessing
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix:
Data Exporter
The data exporter is:
Customer as described in the Principal Agreement
Data Importer
The data importer is:
OnSolve, LLC
Data Subjects
The personal data transferred concern the following categories of data subjects:
Categories of Data Subjects, as determined by the Data Exporter, may include company representatives and (end) users, such as employees, job applicants, contractors, collaborators, partners, suppliers and customers of the Company. Data Subjects also may include consumers and individuals attempting to communicate or transfer personal data to users of the services to be provided under the Principal Agreement.
Categories of data
The personal data transferred concern the following categories of data:
Categories of personal Data, as determined by the Data Exporter, may only include personal contact information such as name, home address, home telephone or mobile number, fax number, email address, employment details including employer name, job title and function.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
Special categories of data is not permitted in the Services.
Processing operations
The personal data transferred will be subject to the following basic processing activities:
The objective of processing of personal data by Data Importer is the performance of the services pursuant to the Principal Agreement.
On behalf of COMPANY
Company’s acceptance of the Principal Agreement shall constitute its agreement to this Addendum, its Schedules and Appendices.
On behalf of ONSOLVE
OnSolve’s acceptance of the Principal Agreement shall constitute its agreement to this Addendum, its Schedules and Appendices.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Described in OnSolve’s Security Standards, which shall be provided to Company upon written request. OnSolve’s Security Standards may be updated from time to time; however, with respect to the level of security protocols and resulting level of protection of data, OnSolve’s Security Standards shall not be materially degraded.
SCHEDULE 5: STANDARD CONTRACTUAL CLAUSES (where GDPR applies)
SECTION 1
- PURPOSE AND SCOPE
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
- The Parties:
- 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 1.A (hereinafter each ‘Data Exporter’); and
- 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 1.A (hereinafter each ‘Data Importer’)
- These clauses apply with respect to the transfer of personal data as specified in Annex 1.B.
- The Appendix to these clauses containing the Annexes referred to therein forms an integral part of these clauses.
- EFFECT AND INVARIABILITY OF THE CLAUSES
- These clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these clauses or prejudice the fundamental rights or freedoms of data subjects.
- These clauses are without prejudice to obligations to which the Data Exporter is subject by virtue of Regulation (EU) 2016/679.
- THIRD-PARTY BENEFICIARIES
- Data subjects may invoke and enforce these clauses, as third-party beneficiaries, against the Data Exporter and/or Data Importer, with the following exceptions:
- clause 1, clause 2, clause 3, clause 6, clause 7;
- clause 8.1.2, 8.9.1, 8.9.3, 8.9.4 and 8.9.5;
- clause 9.1, 9.3, 9.4 and 9.5;
- clause 12.1, 12.4 and 12.1;
- clause 13;
- clause 15.1.3, 15.1.4 and 15.1.5;
- clause 16.5;
- clause 18.1 and 18.2.
- Clause 3.1 is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these clauses, as third-party beneficiaries, against the Data Exporter and/or Data Importer, with the following exceptions:
- INTERPRETATION
- Where these clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
- 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.
- 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 1.B.
- DOCKING CLAUSE
- 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 1.A.
- Once it has completed the Appendix and signed Annex 1.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 1.A.
- The acceding entity shall have no rights or obligations arising under these clauses from the period prior to becoming a Party.
- DATA PROTECTION SAFEGUARDS
The Data Exporter warrants that it has used reasonable efforts to determine that the Data Importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these clauses.
- Instructions
- 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.
- The Data Importer shall immediately inform the Data Exporter if it is unable to follow those instructions.
- Purpose limitation
The Data Importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex 1.B, unless on further instructions from the Data Exporter.
- Transparency
On request, the Data Exporter shall make a copy of these clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex 2 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.
- Accuracy
If the Data Importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the Data Exporter without undue delay. In this case, the Data Importer shall cooperate with the Data Exporter to erase or rectify the data.
- Duration of processing and erasure or return of data
Processing by the Data Importer shall only take place for the duration specified in Annex 1.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 14.5 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 14.1.
- Security of processing
- The Data Importer and, during transmission, also the Data Exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the Data Exporter. In complying with its obligations under this paragraph, the Data Importer shall at least implement the technical and organisational measures specified in Annex 2. The Data Importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
- The Data Importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- In the event of a personal data breach concerning personal data processed by the Data Importer under these clauses, the Data Importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The Data Importer shall also notify the Data Exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
- The Data Importer shall cooperate with and assist the Data Exporter to enable the Data Exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the Data Importer.
- Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the Data Importer shall apply the specific restrictions and/or additional safeguards described in Annex 1.B.
- Onward transfers
The Data Importer shall only disclose the personal data to a third party on documented instructions from the Data Exporter. In addition, the data may only be disclosed to a third party located outside the European Union 1(in the same country as the Data Importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these clauses, under the appropriate Module, or if:
- the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the Data Importer with all the other safeguards under these clauses, in particular purpose limitation.
- Documentation and compliance
- The Data Importer shall promptly and adequately deal with enquiries from the Data Exporter that relate to the processing under these clauses.
- The Parties shall be able to demonstrate compliance with these clauses. In particular, the Data Importer shall keep appropriate documentation on the processing activities carried out on behalf of the Data Exporter.
- The Data Importer shall make available to the Data Exporter all information necessary to demonstrate compliance with the obligations set out in these clauses and at the Data Exporter’s request, allow for and contribute to audits of the processing activities covered by these clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the Data Exporter may take into account relevant certifications held by the Data Importer.
- The Data Exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the Data Importer and shall, where appropriate, be carried out with reasonable notice.
- The Parties shall make the information referred to in paragraphs 8.9.2 and 8.9.3, including the results of any audits, available to the competent supervisory authority on request.
- Instructions
- USE OF SUB-PROCESSORS
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 twenty (20) business days in advance, thereby giving the Data Exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The Data Importer shall provide the Data Exporter with the information necessary to enable the Data Exporter to exercise its right to object.
- Where the Data Importer engages a sub-processor to carry out specific processing activities (on behalf of the Data Exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the Data Importer under these clauses, including in terms of third-party beneficiary rights for data subjects2. The Parties agree that, by complying with this clause, the Data Importer fulfils its obligations under clause 8.8. The Data Importer shall ensure that the sub-processor complies with the obligations to which the Data Importer is subject pursuant to these clauses.
- The Data Importer shall provide, at the Data Exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the Data Exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the Data Importer may redact the text of the agreement prior to sharing a copy.
- The Data Importer shall remain fully responsible to the Data Exporter for the performance of the sub-processor’s obligations under its contract with the Data Importer. The Data Importer shall notify the Data Exporter of any failure by the sub-processor to fulfil its obligations under that contract.
- The Data Importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the Data Importer has factually disappeared, ceased to exist in law or has become insolvent – the Data Exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
- DATA SUBJECT RIGHTS
- The Data Importer shall promptly notify the Data Exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the Data Exporter.
- The Data Importer shall assist the Data Exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex 2 the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under clauses 10.1 and 10.2, the Data Importer shall comply with the instructions from the Data Exporter.
- REDRESS
- The Data Importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to clause 3, the Data Importer shall accept the decision of the data subject to:
- 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;
- refer the dispute to the competent courts within the meaning of clause 18.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The Data Importer shall abide by a decision that is binding under the applicable EU or Member State law.
- The Data Importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
- LIABILITY
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these clauses.
- The Data Importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the Data Importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these clauses.
- Notwithstanding paragraph 12.2, the Data Exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the Data Exporter or the Data Importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these clauses. This is without prejudice to the liability of the Data Exporter and, where the Data Exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the Data Exporter is held liable under paragraph 12.3 for damages caused by the Data Importer (or its sub-processor), it shall be entitled to claim back from the Data Importer that part of the compensation corresponding to the Data Importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph 12.5, it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
- The Data Importer may not invoke the conduct of a sub-processor to avoid its own liability.
- SUPERVISION
-
[Where the Data Exporter is established in an EU Member State:]The supervisory authority with responsibility for ensuring compliance by the Data Exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex 1.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 1.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 1.C, shall act as competent supervisory authority.
- The Data Importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these clauses. In particular, the Data Importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
-
- LOCAL LAWS AND PRACTICES AFFECTING COMPLIANCE WITH THE CLAUSES
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the Data Importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the Data Importer from fulfilling its obligations under these clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these clauses.
- The Parties declare that in providing the warranty in paragraph 14.1, they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards 3;
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
- The Data Importer warrants that, in carrying out the assessment under paragraph 14.2, it has made its best efforts to provide the Data Exporter with relevant information and agrees that it will continue to cooperate with the Data Exporter in ensuring compliance with these clauses.
- The Parties agree to document the assessment under paragraph 14.2 and make it available to the competent supervisory authority on request.
- The Data Importer agrees to notify the Data Exporter promptly if, after having agreed to these clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph 14.1, 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 14.1.
- Following a notification pursuant to paragraph 14.5, 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 16.1.4 and 16.1.5 shall apply.
- OBLIGATIONS OF THE DATA IMPORTER IN CASE OF ACCESS BY PUBLIC AUTHORITIES
- Notification
- The Data Importer agrees to notify the Data Exporter and, where possible, the data subject promptly (if necessary with the help of the Data Exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- If the Data Importer is prohibited from notifying the Data Exporter and/or the data subject under the laws of the country of destination, the Data Importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The Data Importer agrees to document its best efforts in order to be able to demonstrate them on request of the Data Exporter.
- Where permissible under the laws of the country of destination, the Data Importer agrees to provide the Data Exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- The Data Importer agrees to preserve the information pursuant to clauses 15.1.1 to 15.1.3 for the duration of the contract and make it available to the competent supervisory authority on request.
- Clauses 15.1.1 to 15.1.3 are without prejudice to the obligation of the Data Importer pursuant to clause 14.5 and clause 16 to inform the Data Exporter promptly where it is unable to comply with these clauses.
- 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:
- Review of Legality and Data Minimisation
- The Data Importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The Data Importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the Data Importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the Data Importer under clause 14.5.
- The Data Importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the Data Exporter. It shall also make it available to the competent supervisory authority on request.
- The Data Importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
- Notification
- NON-COMPLIANCE WITH THE CLAUSES AND TERMINATION
- The Data Importer shall promptly inform the Data Exporter if it is unable to comply with these clauses, for whatever reason.
- In the event that the Data Importer is in breach of these clauses or unable to comply with these clauses, the Data Exporter shall suspend the transfer of personal data to the Data Importer until compliance is again ensured or the contract is terminated. This is without prejudice to clause 14.6.
- The Data Exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these clauses, where:
- the Data Exporter has suspended the transfer of personal data to the Data Importer pursuant to paragraph 16.2 and compliance with these clauses is not restored within a reasonable time and in any event within one month of suspension;
- the Data Importer is in substantial or persistent breach of these clauses; or
- the Data Importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these clauses.
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.
- Personal data that has been transferred prior to the termination of the contract pursuant to paragraph 16.3 shall at the choice of the Data Exporter immediately be returned to the Data Exporter or deleted in its entirety. The same shall apply to any copies of the data. The Data Importer shall certify the deletion of the data to the Data Exporter. Until the data is deleted or returned, the Data Importer shall continue to ensure compliance with these clauses. In case of local laws applicable to the Data Importer that prohibit the return or deletion of the transferred personal data, the Data Importer warrants that it will continue to ensure compliance with these clauses and will only process the data to the extent and for as long as required under that local law.
- Either Party may revoke its agreement to be bound by these clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
- 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.
- CHOICE OF FORUM AND JURISDICTION
- Any dispute arising from these clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of Ireland.
- A data subject may also bring legal proceedings against the Data Exporter and/or Data Importer before the courts of the Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
SECTION 2 OBLIGATIONS OF THE PARTIES
SECTION 3 LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
SECTION 4 FINAL PROVISIONS
Annex 1
- LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
- Name: Set forth in the Principal Agreement
- Address: Set forth in the Principal Agreement
- Contact person’s name, position and contact details: Set forth in the Principal Agreement
- Activities relevant to the data transferred under these clauses: Set forth in the Principal Agreement
- Role: Controller
Data importer(s): [Identity and contact details of the Data Importer(s), including any contact person with responsibility for data protection]
- Name: OnSolve, LLC
- Address: 6240 Avalon Boulevard, Alpharetta, GA 30009
- Contact person’s name, position and contact details: VP, Information Security
- Activities relevant to the data transferred under these clauses: Set forth in the Principal Agreement
- Role (controller/processor): Processor
- DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Categories of Data Subjects, as determined by the Data Exporter, may include company representatives and (end) users, such as employees, job applicants, contractors, collaborators, partners, suppliers and customers of the Company. Data Subjects also may include consumers and individuals attempting to communicate or transfer personal data to users of the services to be provided under the Principal Agreement.
Categories of personal data transferred
Categories of personal Data, as determined by the Data Exporter, may only include personal contact information such as name, home address, home telephone or mobile number, fax number, email address, employment details including employer name, job title and function.
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.
Sensitive Data is not permitted in the Services.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
The transfer will occur on a continuous basis throughout the duration of the Agreement
Nature of the processing
The Company Personal Data transferred will be subject to the processing activities described in the Principal Agreement.
Purpose(s) of the data transfer and further processing
The objective of processing of personal data by Data Importer is the performance of the services pursuant to the Principal Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
For the duration of the performance of the services pursuant to the Principal Agreement
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The processing of personal data by sub-processors is for the performance of the Data Importer Services pursuant to the Principal Agreement and continues for the duration of the Services.
- COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with clause 13
Data Protection Commission, Irish supervisory authority
On behalf of COMPANY
Company’s acceptance of the Principal Agreement shall constitute its agreement to this Addendum, its Schedules and Appendices.
On behalf of ONSOLVE
OnSolve’s acceptance of the Principal Agreement shall constitute its agreement to this Addendum, its Schedules and Appendices.
Annex 2
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Described in OnSolve’s Security Standards, which shall be provided to Company upon written request. OnSolve’s Security Standards may be updated from time to time; however, with respect to the level of security protocols and resulting level of protection of data, OnSolve’s Security Standards shall not be materially degraded.
ONSOLVE REV 2021.11.12