NuORDER's Data Processing Addendum

1. Background

1.1 You (“Customer” or “you“) and NuOrder, Inc. (“Company“, “we“, “our” or “us“) entered into the Terms and Conditions (the “Terms“), for the provision of the Services.

1.2 In the event that we Process any Customer Personal Data (each as defined below) and (i) the Customer Personal Data relates to Data Subjects (as defined below) located in the EEA, Switzerland or the UK; or (ii) you are established in the EEA, Switzerland or the UK, this Data Processing Addendum (the “DPA”) shall apply to the Processing of such Customer Personal Data, as set out in Section 14(b) of the Terms.

1.3 In the event of a conflict between any of the provisions of this DPA and the remaining provisions of the Terms, the provisions of this DPA shall prevail.

1.4 Each party will comply with all applicable requirements of the Data Protection Laws (as defined below). This DPA is in addition to, and does not relieve, remove, or replace, either party’s obligations under the Data Protection Laws.

1.5 The Customer and NuOrder acknowledge that for the purposes of the Data Protection Laws, the Customer is the Controller and NuOrder is the Processor.

2. DEFINITIONS

2.1 Unless otherwise set out below, each capitalised term in this DPA shall have the meaning set out in the Terms and the following capitalised terms used in this DPA shall be defined as follows:

(a) “Customer Personal Data” means the personal data described in ANNEX 2 and any other personal data that the Company processes on behalf of the Customer in connection with the Company’s provision of the Services;

(b) “Data Protection Laws” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR“) and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Customer Personal Data;

(c) “European Economic Area” or “EEA” means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;

(d) “Party” means each of the Customer and the Company;

(e) “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Customer Personal Data;

(f) ”Standard Contractual Clauses” means, (i) for Customers established in the UK, the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 set out in ANNEX 1 to this DPA or any subsequent version thereof released by the European Commission (which will automatically apply), and which includes ANNEX 2 (Details of the Processing) and ANNEX 3 (Technical and Organizational Measures) to this DPA; and (ii) for Customers established in the EEA or Switzerland, the Standard Contractual Clauses for controller to processor approved by the European Commission’s Decision 2021/914 of 4 June 2021 and as set out in ANNEX 4 to this DPA or any subsequent version thereof released by the European Commission (which will automatically apply), and which includes ANNEX 5 (Details of the processing) and ANNEX 3 (Technical and Organizational Measures).

(g) “Subprocessor” means any Processor engaged by the Company who agrees to receive from the Company any Customer Personal Data; and

(h) the terms “personal data“, “Controller“, “Processor“, “Data Subject“, “Process” and “Supervisory Authority” shall have the same meaning as set out in the GDPR.

3. DATA PROCESSING

3.1 Instructions for Data Processing. The Company will only Process Customer Personal Data in accordance with (a) the Terms (including this DPA), to the extent necessary to provide the Service to the Customer, and (b) the Customer’s written instructions, unless Processing is required by European Union or Member State law to which the Company is subject, in which case the Company shall, to the extent permitted by applicable law, inform the Customer of that legal requirement before Processing that Customer Personal Data. The Terms (including this DPA) (subject to any changes to the Service agreed between the Parties) shall be the Customer’s complete and final instructions to the Company in relation to the processing of Customer Personal Data.

3.2 Processing outside the scope of the Terms (including this DPA) will require prior written agreement between the Customer and the Company on additional instructions for Processing.

3.3 Required consents. Where required by applicable Data Protection Laws, the Customer will be responsible for ensuring that all Data Subjects have given/will give all necessary consents for the lawful Processing of Customer Personal Data by the Company in accordance with the Terms

3.4 Privacy notices. Customer warrants and represents that

(a) it has provided all applicable notices to Data Subjects required for the lawful Processing of Customer Personal Data by the Company in accordance with the Terms; or

(b) in respect of any Customer Personal Data collected by the Company on behalf of the Customer, it has reviewed and confirmed the notices provided by the Company to Data Subjects as accurate and sufficient for the lawful Processing of Customer Personal Data by the Company in accordance with the Terms

4. TRANSFER OF PERSONAL DATA

4.1 Authorised Subprocessors. The Customer agrees that Company may use each of the subcontractors listed here as a Subprocessor to Process Customer Personal Data.

4.2 The Customer agrees that the Company may use subcontractors to fulfil its contractual obligations under the Terms. The Company shall notify the Customer from time to time of the identity of any Subprocessors it engages. If the Customer (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Terms, the Customer may request that the Company moves the Customer Personal Data to another Subprocessor and the Company shall, within a reasonable time following receipt of such request, use all reasonable endeavours to ensure that the Subprocessor does not Process any of the Customer Personal Data.

4.3 Save as set out in clauses 1 and 4.2, the Company shall not permit, allow or otherwise facilitate Subprocessors to Process Customer Personal Data without the prior written consent of the Customer and unless the Company enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their Processing of Customer Personal Data, as are imposed on the Company under this DPA.

4.4 Liability of Subprocessors. The Company shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Customer for the acts and omissions of any Subprocessor approved by the Customer as if they were the acts and omissions of the Company.

4.5 International Transfers of Personal Data. To the extent that the Processing of Customer Personal Data by the Company involves the export of such Customer Personal Data to a country or territory outside the EEA, other than a country or territory ensuring an adequate level of protection for the rights and freedoms of Data Subjects in relation to the Processing of Personal Data as determined by the European Commission, such transfer shall be governed by the Standard Contractual Clauses. In the event of any conflict between any terms in the Standard Contractual Clauses, this DPA and the Terms, the Standard Contractual Clauses shall prevail.

5. DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS

5.1 Company Security Obligations. 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, the Company shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the measures set out in ANNEX 3.

5.2 Upon request by the Customer, the Company shall make available all information reasonably necessary to demonstrate compliance with this DPA.

5.3 Security Incident Notification. If the Company or any Subprocessor becomes aware of a Security Incident, the Company will (a) notify the Customer of the Security Incident without undue delay after becoming aware of the Security Incident, (b) investigate the Security Incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.

5.4 Company Employees and Personnel. The Company shall treat the Customer Personal Data as the Confidential Information of the Customer, and shall ensure that any employees or other personnel of the Company have agreed in writing to protect the confidentiality and security of Customer Personal Data.

6. ACCESS REQUESTS AND DATA SUBJECT RIGHTS

6.1 Data Subject Requests. Save as required (or where prohibited) under applicable law, the Company shall notify the Customer of any request received by the Company or any Subprocessor from a Data Subject in respect of their personal data included in the Customer Personal Data, and shall not respond to the Data Subject.

6.2 The Company shall provide the Customer with the ability to correct, delete, block, access, or copy the Customer Personal Data in accordance with the functionality of the Service.

6.3 Government Disclosure. The Company shall notify the Customer of any request for the disclosure of Customer Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.

7. ASSISTANCE

7.1 Where applicable, taking into account the nature of the Processing, and to the extent required under applicable Data Protection Laws, the Company shall provide the Customer with any information or assistance reasonably requested by the Customer for the purpose of complying with any of the Customer’s obligations under applicable Data Protection Laws, including:

(a) using all reasonable endeavours to assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR; and

(b) providing reasonable assistance to the Customer with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Customer, in each case solely in relation to Processing of Customer Personal Data and taking into account the information available to the Company.

8. Duration and TERMINATION

8.1 Deletion of data. Subject to 2 below, the Company shall, at the Customer’s election and within 90 (ninety) days of the date of termination of the Terms:

(a) delete, and use all reasonable efforts to procure the deletion of, Customer Personal Data Processed by us or any Subprocessors; or

(b) return a complete copy of all Customer Personal Data by secure file transfer in such a format as notified by the Company to the Customer (and delete and use all reasonable efforts to procure the deletion of all other copies of Customer Personal Data Processed by the Company or any Subprocessors). Where this section 1(b) applies, the Company shall not be required to provide a copy of the Customer Personal Data to the Customer).

8.2 The Company and its Subprocessors may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that the Company shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

Annex 1

Standard Contractual Clauses 2010 (processors). These apply to customers in the UK.

For the purposes of this ANNEX 1, references to the “data exporter” and “data importer” shall be to you and to Company respectively (each a “party”; together “the parties”).

Definitions

For the purposes of the Clauses:

(a) ‘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;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘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;

(d)‘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;

(e) ‘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;

(f) ‘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.

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex 2 which forms an integral part of the Clauses.

Third-party beneficiary clause

    1. 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.
    2. 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.
    3. 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.
    4. 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.

Obligations of the data exporter

The data exporter agrees and warrants:

(a) 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;

(b) 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;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Annex 3 to this contract;

(d) 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;

(e) that it will ensure compliance with the security measures;

(f)  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;

(g) 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;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Annex 3, 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;

(i) 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

(j)  that it will ensure compliance with Clause 4(a) to (i).

Obligations of the data importer

The data importer agrees and warrants:

(a) 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;

(b) 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;

(c) that it has implemented the technical and organisational security measures specified in Annex 3 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) 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,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) 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;

(f) 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;

(g) 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 Annex 3 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;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Liability

  1. 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.
  2. 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.

  1. 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.

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:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

  1. 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.

Cooperation with supervisory authorities

  1. 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.
  2. 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.
  3. 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 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

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.

Subprocessing

  1. 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.
  2. 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.
  3. 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.
  4. 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 as needed. The list shall be available to the data exporter’s data protection supervisory authority.

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, if requested by 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.
  2. 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.

Annex 2

Details of the Processing of Customer Personal Data

This Annex 2 includes certain details of the processing of Customer Personal Data as required by Article 28(3) of the GDPR.

    1. The Company maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:

(a) secure any personal data Processed by the Company against accidental or unlawful loss, access or disclosure;

(b) identify reasonably foreseeable and internal risks to security and unauthorised access to the personal data Processed by the Controller;

(c) minimise security risks, including through risk assessment and regular testing.

2. The Company will, and will use reasonable efforts to procure that its Subprocessors, conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.

3. The Company will, and will use reasonable efforts to procure that its Subprocessors, periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

The nature and purpose of the Processing is the Processing of Customer Personal Data provided by the Customer to the Company, or collected by the Company on behalf of the Customer, for the purposes of providing the Service to the Customer.

The types of Customer Personal Data to be Processed includes the following information relating to employees and other personnel of the Customer, authorised by the Customer to use the Service on its behalf, and relating to employees and other personnel of the Customers’ customers: first name and last name; contact information (including email address); usage information, non-traditional identifiers of users, and any other Personal Data the Customer or its users submit to the Company in the course of their use of the Service.

Employees and other personnel of the Customer, authorised by the Customer to use the Service on behalf of the Customer, and employees and other personnel of the Customers’ customers.

The obligations and rights of the Customer are as set out in the Terms (including this DPA).

Annex 3

    1. Security Ownership. NuORDER maintains a comprehensive written information security program
      (“Information Security Program”) designed to implement technical and organizational measures to
      protect Customer Personal Data as required by Applicable Data Protection Law(s) and the Agreement.

    2. Security Roles and Responsibilities. NuORDER ensures that all information security responsibilities are
      defined and allocated in accordance with NuORDER’s approved policies for information security. Such
      policies are published and communicated to the employees and relevant external parties.

    3. Risk Management.  NuORDER has a risk management framework and conducts a monthly risk
      assessment of its environment and systems to understand its risks and apply appropriate controls to
      manage and mitigate risks before processing Customer Personal Data or offering its services.
    1. General. NuORDER informs its personnel about relevant security procedures and their roles and
      ensure that personnel with access to Customer Personal Data are subject to written confidentiality
      obligations. NuORDER further informs its personnel of possible consequences of breaching
      NuORDER’s security policies and procedures, which must include disciplinary action, including
      termination of employment for NuORDER’s employees and termination of contract or assignment for
      subcontractors and temporary personnel.

    2. Training. NuORDER implements and train NuORDER’s workforce on its Information Security Programs
      in a way that produces a commercially reasonable degree of care to prevent the unauthorized
      collection, use, sharing, dissemination, retention, destruction, and other inappropriate or prohibited use
      of Customer Personal Data.

    3. Background Checks. NuORDER performs criminal and other relevant background checks on its
      personnel in compliance with local laws.
    1. Conditions for Access. Access to systems containing stored Customer Personal Data is not granted to
      NuORDER’s employees, subcontractors, or other agents unless: (1) they have a need to view the
      information in order to perform authorized work; (2) they are trained in the proper handling of Customer
      Personal Data; (3) their access can be uniquely identified (e.g., by a unique User ID); (4) they are
      required to use a password or other authorizing token configured to meet industry best practice
      standards; and (5) the date, time, requestor, and nature of the access (i.e., read-only or modify) has
      been recorded in a log file which is maintained and preserved according to Applicable Data Protection
      Law(s) and commercially reasonable industry standards.

    2. Procedures for Changing Roles. NuORDER puts in place procedures to modify or revoke access
      permissions to Customer Personal Data when job responsibilities change and/or the need for data
      access changes.

    3. Access Authorization. 
      • NuORDER maintains and updates a record of personnel authorized to access systems that
        contain Customer Personal Data and NuORDER reviews users’ access rights at regular
        intervals;
      • For systems that process Customer Personal Data, NuORDER revalidates the access of users
        who change reporting structure and deactivates authentication credentials that are no longer
        necessary; and
      • NuORDER ensures that access to program source code and associated items such as software
        object code, designs, specifications, verification plans, and validation plans, will be restricted in
        order to prevent the introduction of unauthorized functionality and to avoid unintentional
        changes.

    4. Network Design. For systems that process Customer Personal Data, NuORDER has controls to avoid
      personnel assuming access rights they have not been assigned to gain unauthorized access to
      Customer Personal Data.

    5. Least Privilege. NuORDER limits access to Customer Personal Data to those personnel performing
      under the Agreement and, to the extent technical support is needed, its personnel performing such
      technical support.
    • NuORDER uses industry standard practices to identify and authenticate users who attempt to access
      information systems.
    • Where authentication mechanisms are based on passwords, NuORDER requires the password to
      conform to industry standard password control best practices.
    • NuORDER ensures that de-activated or expired identifiers are not granted to other individuals.
    • NuORDER monitors repeated attempts to gain access to the information system using an invalid
      password.
    • NuORDER maintains industry standard procedures to deactivate passwords that have been corrupted
      or inadvertently disclosed.
    • NuORDER uses industry standard password protection practices, including practices designed to
      maintain the confidentiality and integrity of passwords when they are assigned and distributed, and
      during storage (e.g., passwords shall not be stored or shared in plain text). Such practices are designed
      to ensure strong, confidential passwords.
    • Message digest algorithms such as SHA-256 are used to hash and verify a user’s password, and a
      “salt” is added to the input string prior to encoding to ensure that the same password text chosen by
      different users will yield different encodings.
    1. Cryptographic Controls Policy. NuORDER:
      • Adopts commercially reasonable practices with regard to encrypting Customer Personal Data
        (at a minimum, industry-standard transparent encryption techniques—full disk or database
        transparent encryption—must be employed to safeguard Customer Personal Data in
        NuORDER’s systems from retrieval by unauthorized persons)
      • Transmits data over secure and encrypted connections using industry-standard encryption
        techniques.

         

    2. Key Management. NuORDER assesses and manages the lifecycle of cryptographic algorithms,
      hashing algorithms, etc., and deprecates and disallows usage of weak cypher suites, and
      mathematically insufficient block lengths and bit lengths. NuORDER shall use a key management
      system (“KMS”) that is at the minimum of FIPS 140-2 validated (or better) for the management and
      storage of encryption keys, and shall rotate encryption keys on an annual basis where reasonably
      possible.
    1. Clear Desk. NuORDER has policies requiring a “clean desk/clear screen.”

    2. Printed Material. With respect to printed material containing Customer Personal Data, NuORDER (i)
      stores such material in secured areas with access limited to individuals with business need to access,
      and (ii) disposes of such material in a secure manner, employing processes including, at a minimum,
      onsite shredding prior to recycling or placement in secure bins with subsequent off-site shredding by a
      licensed contractor.
    1. Operational Policy. NuORDER maintains written policies describing its security measures and the
      relevant procedures and responsibilities of its personnel who have access to Customer Personal Data
      and to its systems and networks. NuORDER communicates the policies to all persons involved in the
      processing of Customer Personal Data.

       

    2. Security and Processing Controls. NuORDER:
      • Maintains, documents, and makes available standards and procedures to address the
        configuration, operation, and management of systems and networks, services, and Customer
        Personal Data;
      • Puts standards and procedures in place that include security controls, identification and
        patching of security vulnerabilities, change control process and procedures, problem
        management, and incident detection and management; and
      • Maintains logs of administrator and operator activity and data recovery events and have in place
        alerting triggers for any anomalous activity.
    1. Networks. NuORDER uses, at a minimum, the following controls to secure its networks that access
      Customer Personal Data or customer servers which store Customer Personal Data:
      • Network traffic passes through firewalls, which are monitored at all times. NuORDER
        implements intrusion prevention systems that allow traffic flowing through the firewalls and LAN
        to be logged and protected at all times;
      • Access to network devices for administration utilizes a minimum of 256-bit, industry standard
        encryption;
      • Network, application, and server authentication passwords are required to meet minimum
        complexity guidelines (at least 12 characters with at least 3 of the following four classes: upper
        case, lower case, numeral, special character);
      • Initial user passwords are required to be changed during the first log-on. NuORDER has a
        policy prohibiting the sharing of user IDs and passwords.

    2. Network Segmentation. NuORDER ensures separation between production, staging, qa, and
      development environments via network segmentation.

    3. Information Security Aspects of Business Continuity Management.
      • Planning. NuORDER maintains emergency and contingency plans for the facilities in which
        NuORDER information systems that process Customer Personal Data are located. To ensure
        that they are valid and effective during adverse situations, NuORDER verifies the established
        and implemented information security continuity controls at regular intervals;
      • Data Recovery. NuORDER’s redundant storage and its procedures for recovering data are
        designed to reconstruct Customer Personal Data in its original state from before the time it was
        lost or destroyed; and
      • Backup. Customer Personal Data are backed up regularly, and the backups are encrypted and
        stored in secure, environmentally-controlled, limited-access facilities until such time that deletion
        or destruction is required under the Agreement, this PSE, any statement of work, or under
        Applicable Data Protection Law(s).
    1. Network Scans. NuORDER runs regular internal and external network vulnerability scans and after any
      change in the network configuration (such as new system component installations, changes in network
      topology, firewall rule modifications, or product upgrades).

       

    2. Security Fixes. NuORDER promptly installs any security-related fixes identified by their hardware or
      software vendors and related to Customer Personal Data.

       

    3. Testing Key Controls, Systems, and Procedures. NuORDER regularly tests the key controls, systems
      and procedures of their Information Security Programs to ensure that they are properly implemented
      and effective in addressing the threats and risks identified, and incorporate reasonable, industry-
      standard, security safeguards. Tests are conducted or reviewed by independent third parties or staff
      independent of those that develop or maintain the Information Security Program.

    4. Publicly Accessible Networks. Except as restricted by Applicable Data Protection Law(s), NuORDER
      does not electronically transmit (via email or otherwise) Customer Personal Data over publicly-
      accessible networks without using industry-standard encryption in transit, or another mechanism that
      has been mutually agreed upon in advance by Customer and NuORDER.

    5. PCI Compliance. Solely to the extent NuORDER transmits or otherwise Processes Payment Card
      information on behalf of Customer, NuORDER complies with any applicable industry security standards
      including, but not limited to, PCI DSS standards and provides evidence to Customer of such
      compliance upon Customer’s request.

    6. Hardware and Electronic Media. NuORDER deploys and follows policies and procedures to ensure (1)
      the safe receipt and removal of hardware and electronic media containing Customer Personal Data into
      and out of a NuORDER’s facilities; (2) the movement and storage of these items within NuORDER’s
      facilities; (3) the disposition of the hardware or electronic media on which it is stored; and (4) the
      removal of Customer Personal Data from electronic media before reuse.

    7. Storage Media. NuORDER deploys and follows policies and procedures to ensure that all Customer
      Personal Data is irreversibly and securely deleted from storage media prior to any such storage media
      (1) being assigned, allocated or reallocated to another individual; or (2) being permanently removed
      from NuORDER’s facilities.

    8. Logging. NuORDER maintains logs from information systems, network devices and applications for a
      minimum period of ninety (90) days and stores log files on a centralized logging server. Logs are
      sufficiently detailed in order to assist in the identification of the source of an issue and enable a
      sequence of events to be recreated.
      • Logs record date, time and source location (IP address/hostname) for all access attempts.
      • Logs capture system and network security event information, alerts, failures, events and errors.
      • There is a procedure for daily review of logs.
      • Integrity of log files is maintained and protected from tampering by restricting access to systems
        that store log files.

Annex 4

SECTION I

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:

    • The natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
    • The entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c) These Caluses 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.

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.

Third-party Beneficiary

(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.

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.

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 I.B.

Docking Clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II  —  OBLIGATIONS OF THE PARTIES

Data Protection Safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b)The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose Limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

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

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

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

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

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

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

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

8.8   Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (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.

Use of Sub-processors

(a) 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 7 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.

(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.

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.

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.

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.

Supervision

(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) 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

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.

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

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.

Governing Law

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

Choice of Forum and Jurisdiction

(a)        Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b)       The Parties agree that those shall be the courts of the Netherlands.

(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 5