Direqt Data Processing Addendum

RECITALS

This Data Processing Addendum (the “Data Processing Addendum”), dated as of the execution date of the Subscription Order Form (the “Effective Date”) by and between the Client listed in the Subscription Order Form (“Client”), and Direqt Inc. (“Direqt”). This Data Processing Addendum refers to Client and Direqt individually as a “Party” and collectively as the “Parties.

WHEREAS, Client and Direqt have entered into a separate master agreement and Subscription Order Form for Services (as defined below), as may have been amended, amended and restated, supplemented, or otherwise modified from time to time in accordance with its provisions (the “Services Agreements”), which define Direqt’s obligations with respect to the provision of Services to Client;

WHEREAS, Direqt may process Personal Data as part of delivering the Services; and

WHEREAS, it is therefore necessary for the Parties to enter into an appropriate data processing agreement which reflects the roles of the Parties and their obligations under applicable Data Privacy Law and the Parties wish to enter into such an agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the premises set out above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

DEFINITIONS. Capitalized terms used and not defined in this Data Processing Addendum have the respective meanings assigned to them in the Services Agreement.“Data Privacy Law” means any and all governmental laws, rules, directives, regulations or orders, whether existing as of the date of this Data Processing Addendum or enacted in the future while this Data Processing Addendum remains in effect, that are applicable to a particular Party’s performance under this Data Processing Addendum, which may include, as applicable, the GDPR, the UK GDPR, the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) (“CCPA”), the California Consumer Privacy Rights Act of 2020 (Cal. Civ. Code § 1798.100 et seq.) (“CPRA”), the Virginia Consumer Data Protection Act of 2021 (Virginia Code § 59.1-571 et seq.) (“VCDPA”), and the Colorado Privacy Act, Colo. Rev. Stat. § 6-1-1301 et seq. (“CPA”).“Controller” means either: (a) the meaning set forth in the applicable Data Privacy Law; or (b) absent such a definition, the Party that, alone or jointly with others, determines the means and purpose of the Processing of Personal Data. Without limiting the foregoing, the term “Controller” includes a “business” under the CCPA or CPRA.“Client Data” shall mean any Personal Data that Direqt processes as a Processor in providing the Services to a Client pursuant to this Services Agreement.“Data Subject” has the meaning set forth in the applicable Data Privacy Law. Without limiting the foregoing, the term “Data Subject” includes a “consumer” as defined under the CCPA or CPRA.“EU Standard Contractual Clauses” means the applicable module(s) of the European Commission’s standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as set out in the Annex to Commission Implementing Decision (EU) 2021/914, a completed copy of which comprises Attachment 1, as amended, supplemented, or otherwise modified from time to time.
“GDPR” means the EU General Data Protection Regulation (EU Regulation 2016/279) and the implementing acts of the foregoing by a Member State or Switzerland, each as amended from time to time and any successor legislation thereto and any regulations promulgated thereunder.

“Member State” means a member state of the European Union and/or the European Economic Area, as such group may be modified from time to time, Switzerland, and the United Kingdom.

“Personal Data” has the meaning set forth in the applicable Data Privacy Law. Without limiting the foregoing, the term “Personal Data” includes any “personal data” as defined under the GDPR and any “personal information” as defined under the CCPA and the CPRA.

“Process” and “Processing” has the meaning set forth in the applicable Data Privacy Law.

“Processor” has the meaning set forth in the applicable Data Privacy Law. Without limiting the foregoing, the term “Processor” includes a “service provider” or a “contractor” under the CCPA or CPRA.

“Services” means the provision of services or other work products by Direqt as described and set out in the Services Agreement, and such other services as the Parties may agree upon in writing from time to time.

“Standard Contractual Clauses” means the EU Standard Contractual Clauses and/or the UK Standard Contractual Clauses, as applicable.

“Subprocessor” means any Processor engaged by Direqt to assist with the provision of the Services which involves the processing of Client Data. A Subprocessor includes, without limitation, any subcontractor.

“UK GDPR” means the United Kingdom Data Protection Act of 2018 and the United Kingdom General Data Protection Act, as amended from time to time and any successor legislation thereto and any regulations promulgated thereunder.

“UK Standard Contractual Clauses” means the European Commission’s Standard Contractual Clauses for the transfer of Personal Information from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 201/87/EU, as may be amended, modified, or replaced by the United Kingdom, a completed copy of which comprises Attachment 2, as amended, supplemented or otherwise modified from time to time.

“Term” is the term of the Services Agreement.3. STATUS OF PARTIES. Direqt is the Processor of Client Data and Client is the Controller of Client Data under this Data Processing Addendum. Direqt shall not assume any responsibility for determining the purposes for which Client Data shall be processed.
RELATIONSHIP WITH SERVICES AGREEMENT. This Data Processing Addendum is an addendum to the Services Agreement. Unless there is any conflict or inconsistency between the provisions in the Services Agreement and this Data Processing Addendum (in which case, to the extent this Data Processing Addendum requires additional, more stringent, or more protective obligations, the provisions of this Data Processing Addendum take precedence), all other provisions of the Services Agreement apply. In case of a conflict or inconsistency between the operative provisions in this Data Processing Addendum and the Standard Contractual Clauses in Attachment 1 or Attachment 2, as applicable, the Standard Contractual Clauses shall supersede and take precedence.
STATUS OF PARTIES. Direqt is the Processor of Client Data and Client is the Controller of Client Data under this Data Processing Addendum. Direqt shall not assume any responsibility for determining the purposes for which Client Data shall be processed.
SCOPE OF DATA PROCESSING.
1. All Parties shall comply with their applicable obligations under Data Privacy Laws.
2. The subject-matter and business purpose of the data processing to be carried out by Direqt is: Direqt is the developer and host of a Software-as-a-Service text message platform used by Client to facilitate the delivery of messages between Client and mobile subscribers as further outlined in the Services Agreement.
3. The duration of the data processing to be carried out by Direqt shall be for the Term stated in the Services Agreement.
4. The nature and purpose of the data processing to be carried out by Direqt is: Direqt is the developer and host of a Software-as-a-Service text messaging platform used by Client to facilitate the delivery of messages between Client and mobile subscribers as further outlined in the Services Agreement.
5. The type of personal data involved in the data processing is: telephone numbers and any personal data contained in the Client Data or content of text messages sent between Data Subjects and Client.
6. The categories of Data Subjects involved in the data processing are: Data Subjects that have opted in to receive messages from Client.
CONTROLLER OBLIGATIONS.
1. Client will only provide Direqt with Client Data that is required for Direqt to perform the Services.
2. Client shall only provide instructions to Direqt that comply with Data Privacy Laws and Client represents and warrants that Direqt’s Processing in accordance with Client’s instructions shall not cause Direqt to be in breach of any Data Privacy Laws or Client’s policies and procedures.
3. Without limiting the foregoing, to the extent Client discloses Client Data for a business purpose to Direqt, Direqt acknowledges and agrees that such Client Data is disclosed only for limited and specified business purposes.
PROCESSOR OBLIGATIONS.
- 6.1 Direqt shall Process Client Data on behalf of Client for the specified business purposes for which Client provides or permits Client access to Client Data and exclusively and only in accordance with the documented instructions received from Client. Client may provide Direqt with general or specific instructions regarding the data Processing provided as part of the Services. Instructions shall be issued in writing or via e-mail.
- 6.2 Direqt shall not sell or share Client Data, or retain, use, or otherwise disclose Client Data outside of the direct business relationship with Client or for any purpose other than for the business purposes specified in the Services Agreement, unless otherwise permitted under applicable Data Privacy Laws. Direqt shall not knowingly take any action that would cause any transfers of Client Data to or from Client to qualify as “selling personal information” under the CPRA or any other similar applicable Data Privacy Laws.
- 6.3 In the event Direqt is required under any Data Privacy Law to process Client Data in excess of Client’s documented instructions, Direqt shall notify Client of such a requirement, unless such Data Privacy Law prohibits such notification on important grounds of public interest, in which case it will notify Client as soon as the Data Privacy Law permits it to do so.
- 6.4 Direqt shall notify Client if Direqt reasonably believes that an instruction issued by Client would violate any Data Privacy Law, in which case Direqt will be entitled to suspend performance of such instruction, until Client confirms in writing that such instruction is valid under applicable Data Privacy Law.
- 6.5 If Direqt cannot comply with this Data Processing Addendum for whatever reason, then it shall inform Client of its inability to comply, in which case the Parties shall negotiate in good faith alternative Processing. If no other alternative Processing is commercially reasonable to Direqt, then Direqt may immediately suspend any Processing of Client Data and/or terminate, in whole or in part, the Services Agreement and this Data Processing Addendum.
- 6.6 Upon Client’s request, Direqt will cooperate with Client to enable Client to: (a) comply with all reasonable requests of access, rectification, and/or deletion of Client Data arising from a Data Subject; (b) enforce rights of Data Subjects under the Data Privacy Law; and/or (c) comply with all requests from a supervisory authority, including but not limited to in the event of an investigation. All costs of such cooperation shall be borne by Client. If Direqt receives a request submitted by Data Subjects to exercise their rights, it will provide a copy of the request to Client and reasonably assist Client in compliance with such requests.
- 6.7 Direqt shall provide commercially reasonable assistance to Client where Client carries out a data privacy impact assessment relating to Client Data. All costs of such assistance shall be borne by Client.
- 6.8 Direqt shall notify Client in the event it receives any request, complaint, or communication relating to Client’s obligations under Data Privacy Laws (including from data protection authorities and/or supervisory authorities).
SECURITY MEASURES.
- 7.1 Direqt shall take and implement appropriate technical and organizational security and confidentiality measures designed to provide a level of security appropriate to the risk to Client Data against the accidental or actual unauthorized use, modification, loss, compromise, destruction, or disclosure of, or access to, Client Data (a “Security Incident”).
- 7.2 Such measures implemented in Section 7.1 shall take into account industry standards and costs of implementation as well as the nature, scope, context, and purposes of the Processing and the risk of varying likelihood and severity for the rights and freedoms of individuals.
- 7.3 For the Term of the Services Agreement, Direqt will ensure that all persons authorized to process Client Data only processes Client Data in accordance with instructions from Client (unless required to do otherwise under Data Privacy Law).
CONFIDENTIALITY. Direqt shall ensure that any persons entrusted to Process Client Data have committed themselves to confidentiality and/or are bound by related obligations under applicable Data Privacy Law.
SECURITY INCIDENT NOTIFICATION OBLIGATIONS.
- 9.1 In the event of a Security Incident arising during the performance of the Services by Direqt, Direqt shall:(a) notify Client about the Security Incident without undue delay after becoming aware of the Security Incident;(b) as part of the notification under Section 9.1(a), provide a description of the Security Incident including the nature of the Security Incident, the categories and approximate number of Data Subjects affected, the categories and approximate number of data records affected, the likely consequences of the Security Incident and the risks to affected Data Subjects;(c) promptly update Client as additional relevant information set forth in Section 9.1(b) above become available;(d) reasonably assist Client to ensure Client’s compliance with its notification obligations under Data Privacy Law; and
  (e) take all other actions as may be required by Direqt under the applicable Data Privacy Law.9.2 Direqt shall make any information referred to under Section 9.1 available to Client on request. All such information shall be considered the Confidential Information of Direqt.
SUBPROCESSORS.
- 10.1 Client authorizes Direqt to appoint (and permit each Subprocessor appointed in accordance with this Section 10 to appoint) Subprocessors in accordance with this Section 10 and any restrictions in the Services Agreement.
- 10.2 Notwithstanding anything to the contrary in this Data Processing Addendum or the Services Agreement, Direqt may continue to use all Subprocessors already engaged by Direqt as of the Effective Date, subject to Direqt promptly meeting the obligations set forth in Section 10.4.
- 10.3 Direqt shall notify Client where Direqt wishes to engage a new Subprocessor to process Client Data and shall provide, upon Client’s request, the identity and location of the Subprocessor and a description of the processing to be subcontracted or outsourced to such Subprocessor. Where Direqt wishes to appoint a Subprocessor under this Data Processing Addendum, Direqt will select the Subprocessor with due diligence and will verify prior to engaging the Subprocessor that such Subprocessor is capable of complying with the obligations of Direqt towards Client, to the extent applicable to the services assigned to that Subprocessor. If, within five (5) days of receipt of such notice, Client notifies Direqt in writing of any objections (on reasonable grounds) to the proposed appointment, then Direqt shall not appoint (or disclose any Client Data to) the proposed Subprocessor until reasonable steps have been taken to address the reasonable objections raised by Client, and Client has been provided with a reasonable written explanation of the steps taken.
- 10.4 When engaging any Subprocessor, Direqt will enter into a written contract with such Subprocessor containing data protection obligations no less onerous than those set forth in this Data Processing Addendum with respect to the protection of Client Data to the extent applicable to the nature of the Services provided by such Subprocessor. Direqt shall ensure the subcontracting agreement with such Subprocessor includes appropriate contractual provisions in accordance with Data Privacy Laws, including ensuring that each person processing Client Data is subject to a duty of confidentiality with regard to such data.
- 10.5 Such subcontracting under this Section 10 shall not release Direqt from their responsibility for their obligations under the Services Agreement. Direqt shall be responsible for the work and activities of its Subprocessors.
INTERNATIONAL DATA TRANSFERS.
- 11.1 Where there are transfers of Personal Data from a Member State to a country that is not a Member State, the Parties agree and acknowledge that each Party is required to implement policies and procedures to ensure that such data transfers comply with Data Privacy Laws. Where applicable, all such transfers shall only be made pursuant to the Standard Contractual Clauses entered into between the Parties contained in Attachment 1 and Attachment 2 as completed as set forth herein, and take all other actions required to legitimize the transfer, including, as necessary: (a) conducting a transfer impact assessment as required under the applicable Data Protection Laws; (b) formally executing the applicable Standard Contractual Clauses with a written or electronic signature, as necessary; (c) co-operating to register the Standard Contractual Clauses with any supervisory authority in any applicable country; (d) procuring approval from any such supervisory authority; and (e) providing additional information about the transfer to such supervisory authority.
- 11.2 In the event either Party believes, in its reasonable discretion, that it is unable to comply with the requirements under the Standard Contractual Clauses or provide such a level of protection to Client Data, such Party shall notify the other Party of such determination and the other Party may, if it agrees with such determination and the Parties cannot reasonably supplement the Standard Contractual Clauses with additional terms and conditions that would provide the required level of protection or adopt another cross-border data transfer mechanism that will provide the required level of protection, suspend any further transfers of Client Data or terminate the Services Agreement.
- 11.3 To the fullest extent permitted by law, if the applicable supervising authority adopts updated Controller-Processor Standard Contractual Clauses, Direqt may unilaterally amend this Data Processing Addendum by replacing the Standard Contractual Clauses attached hereto as Attachment 1 with the applicable Controller-Processor Standard Contractual Clauses adopted by such supervisory authority, including any edits or supplements Direqt needs to add to the Standard Contractual Clauses in order to complete them. Direqt will make the amended Standard Contractual Clauses available at https://www.direqt.io/dpa.
RETURN AND DESTRUCTION.
- 12.1 Without prejudice to any obligations under this Section 12, following termination or expiration of the Services Agreement for whatever reason, Direqt shall cease processing Client Data and shall require that all Subprocessors cease processing Client Data.
- 12.2 Following termination or expiration of the Services Agreement for whatever reason Direqt shall destroy or return all copies of Client Data, unless and for the duration Direqt is permitted to retain such Client Data in accordance with Data Privacy Laws. Solely to the extent that Direqt is required by applicable Data Privacy Law to provide Client with the election of whether Direqt shall return or destroy the Client Data, Client shall be provided the option to make such election. Notwithstanding the foregoing, to the extent it is not commercially reasonable for Direqt to remove Client Data from archive or other backup media, Direqt may retain Client Data on such media in accordance with its backup or other disaster recovery procedures. In the event Direqt retains Client Data after the Term, Direqt shall continue to comply with the confidentiality and privacy obligations hereunder until it is no longer in possession of Client Data.
AUDITS.
- 13.1 Direqt shall, upon receiving at least thirty (30) days prior written notice from Client, submit Direqt’s facilities for a reasonable audit of Processing activities carried out under this Data Processing Addendum and to ensure that Direqt uses the Client Data in a manner consistent with the obligations under this Data Processing Addendum and Data Privacy Laws, where such audit shall be carried out by an independent third-party auditor mutually agreed upon by the Parties and bound by a confidentiality agreement with Direqt (“Auditor”) and, where applicable, approved by the relevant supervisory authority. Any effort as well as internal and external costs of audits requested by Client pursuant to this Section 13.1 shall be borne by Client. Notwithstanding the foregoing, a maximum of one (1) audit may be undertaken in any twelve (12) month period, unless additional audits are required subsequent to a Security Incident. Client may, upon notice to Direqt, take reasonable and appropriate steps to stop and remediate Direqt’s unauthorized use of Client Data.
- 13.2 Direqt shall provide Client or Auditor with the necessary information and shall keep the necessary records required for an audit of the processing of Client Data and will, subject to Data Privacy Law, make available said documents and/or data media to Client upon written request.
- 13.3 Direqt shall provide reasonable support for any and all audits of Client or Auditor under this Section 13 and shall contribute to the complete and efficient completion of the audit. Specifically, upon the reasonable request of Client, Direqt shall provide to Client other information necessary to (i) show its compliance with Data Privacy Laws and (ii) enable Client to conduct and document any data protection assessments required by Data Privacy Laws.
TERMINATION. The termination or expiration of the Services Agreement for any reason shall cause termination of this Data Processing Addendum.
LIABILITY. The liability of each Party under this Data Processing Addendum shall be subject to the exclusions and limitations of liability set out in the Services Agreement. Any reference to any “limitation of liability” of a party in the Services Agreement shall be interpreted to mean the aggregate liability of a Party under the Services Agreement and this Data Processing Addendum.
COMPELLED DISCLOSURES. Any disclosure by Direqt or its representatives of any of the Client Data pursuant to applicable federal, state, or local law, regulation, or valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) will be subject to the terms of this paragraph. Prior to making such a disclosure, Direqt shall, to the extent permitted under the Legal Order, provide Client with: (a) prompt written notice of such requirement so that Client may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at Client’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Direqt remains subject to a Legal Order to disclose any Client Data, Direqt shall make reasonable efforts to disclose no more than the portion of Client Data which such Legal Order specifically requires Direqt to disclose.
MISCELLANEOUS.
- 17.1 Change in Data Privacy Laws. If a change in any Data Privacy Laws prevents Direqt from fulfilling all or part of its obligations under the Services Agreement or this Data Processing Addendum, the Parties shall suspend the processing of Client Data until that processing complies with the new requirements. If Direqt is unable to bring the processing of Client Data into compliance with the Data Privacy Laws within a reasonable period, Direqt may terminate the Services Agreement and/or this Data Processing Addendum upon written notice to the Client.
- 17.2 Amendment. This Data Processing Addendum may not be amended or modified except in writing signed by authorized representatives of both Parties.
- 17.3 Severability. If any provision in this Data Processing Addendum is determined to be ineffective or void by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject, it shall be ineffective or void to that extent only and the validity and enforceability of the remaining provisions of the Data Processing Addendum and the Services Agreement shall not be affected. The Parties shall promptly and in good faith replace the ineffective or void provision with a lawful provision that reflects the business purpose of the ineffective or void provision. The Parties shall similarly promptly and in good faith add any necessary appropriate provision where such a provision is found to be missing by any court or body of competent jurisdiction or by virtue of any legislation to which this Data Processing Addendum is subject.
- 17.4 Governing Law. Notwithstanding anything to the contrary in the Services Agreement, this Data Processing Addendum shall be governed by and construed in accordance with the national law that applies to the Client.
- 17.5 Headings. The headings in this Data Processing Addendum are for reference only and shall not affect the interpretation of this Data Processing Addendum.

Attachment 1

STANDARD CONTRACTUAL CLAUSES

(Controller – Processor)

(Only for Processing of Data Subjects in the European Economic Area, not in the United Kingdom)

SECTION I

Clause 1.

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ([1]) for the transfer of personal data to a third country.

(b) The Parties.

Name of the data exporting organisation: The Client set forth in the Data Processing Addendum

Address: As set forth in the Data Processing Addendum

(the data exporter)

And

Name of the data importing organisation: Direqt Inc.

Address: 800 5th Ave, #101-326, Seattle, WA 98104

(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.

Clause 2.

Effect and invariability of the Clauses

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

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

Clause 3.

Third-party beneficiary clause

(a) Data subject 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 – Clause 8.1(b), 8.9(a), (c), (d) and (e);

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

(iv) Clause 12 – Clause 12(a), (d) and (f);

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18 – Clause 18(a) and (b).

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

Clause 4.

Interpretation

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

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

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

Clause 5.

Hierarchy

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

Clause 6.

Description of the transfer(s)

The details of the transfer(s) and in particular the special categories of personal data that are transferred and the purpose(s) for which they are transferred are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 7.

Docking clause

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

(b) Once it has completed the Appendix and signed Appendix 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 Appendix I.A.

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

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8.

Data protection safeguards

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

Instructions.
1. (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.
2. (b) 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 Appendix 1, 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 Appendix 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 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 Appendix 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).
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 pseudonymization, 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 Appendix 2. 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.
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 Appendix I.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([2]) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:(i)        the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;(ii)        the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii)        the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

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

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
Documentation and compliance.(a)        The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.(b)        The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.(c)        The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d)        The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

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

Clause 9.

Use of Subprocessors

(a) 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.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects([3]). The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

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

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

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

Clause 10.

Data subject rights

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

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Appendix 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.

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

Clause 11.

Redress

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

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

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

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.

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

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

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

Clause 12.

Liability

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

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

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

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

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

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

(g) The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

Clause 13.

Supervisions

(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Appendix I.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Appendix I.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Appendix I.C, shall act as competent supervisory authority.

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

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

Clause 14.

Local laws and practices affecting compliance with the Clauses

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

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

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination including those requiring the disclosure of data to public authorities or authorising access by such authorities relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards([4]);
(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 (c), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15.

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

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 paragraph (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) paragraph (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.
Review of legality and data minimisation.
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16.

Non-compliance with the Clauses and termination

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

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

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

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

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

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

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

Clause 17.

Governing law

(a) The Clauses shall be governed by the law of the Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland (specify Member State).

Clause 18.

Choice of forum and jurisdiction

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

(b) The Parties agree that those shall be the courts of Ireland (specify Member State).

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

Execution: The data exporter and data importer are deemed to have accepted and executed these Standard Contractual Clauses (processors) as of the Effective Date of the Data Processing Addendum attached hereto, with no additional signatures required.

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.

A. LIST OF PARTIES

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Data importer
The data importer is (please specify briefly activities relevant to the transfer):

The developer and host of a Software-as-a-Service text message platform, as set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

B. DESCRIPTION OF TRANSFER

Data subjects
The personal data transferred concern the following categories of data subjects (please specify):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Categories of data
The personal data transferred concern the following categories of data (please specify):

Telephone numbers and as otherwise set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Processing operations
‍The personal data transferred will be subject to the following basic processing activities (please specify):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

C. COMPETENT SUPERVISORY AUTHORITY

The competent supervisory authority/ies as set for in Standard Contractual Clause 13

Execution: The data exporter and data importer are deemed to have accepted and executed these Standard Contractual Clauses (processors) of the Effective Date of the Data Processing Addendum attached hereto, with no additional signatures required.

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):

Direqt implements industry best practices for security designed to protect Client Data against accidental or unauthorized disclosure. Access to Client Data is limited to employees that require such access to perform their official duties. Industry-standard encryption is used for the transfer and storage of all Client Data. Direqt is committed to ensuring 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.

Attachment 2

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

(Only for Processing of Data Subjects in the UK)

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

Name of the data exporting organisation: The Client set forth in the Data Processing Addendum

Address: As set forth in the Data Processing Addendum.

(the data exporter)

And

Name of the data importing organisation: Direqt Inc.

Address: 800 5th Ave, #101-326, Seattle, WA 98104

Tel.: 206-203-7331; e-mail: info@direqt.ai

Other information needed to identify the organisation:

…………………………………………………………………
(the data importer)

each a “party”; together “the parties”,

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘Commissioner’ shall have the same meaning as in the UK GDPR;

(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 covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;

(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 UK;

(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.

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

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.

Clause 4

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 Commissioner) and does not violate the applicable data protection law;

(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 Appendix 2 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 covered by adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the Commissioner 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 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;

(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).

Clause 5

Obligations of the data importer[5]

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 Appendix 2 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 Commissioner 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 Commissioner;

(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 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;

(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.

Clause 6

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.

3. 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:

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

(b) to refer the dispute to the UK courts.

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

1. The data exporter agrees to deposit a copy of this contract with the Commissioner if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the Commissioner 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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the country of the United Kingdom 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 (i) making changes permitted by Paragraph 7(3) & (4) of Schedule 21 Data Protection Act 2018; or (ii) adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

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[6]. 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 laws of the country of the UK 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 at least once a year. The list shall be available to the Commissioner.

Clause 12

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, 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.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the Commissioner, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Execution: The data exporter and data importer are deemed to have accepted and executed these Standard Contractual Clauses as of the Effective Date of the Data Processing Addendum attached hereto, with no additional signatures required.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Categories of data

The personal data transferred concern the following categories of data (please specify):

Telephone numbers and as otherwise set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

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) (or document/legislation attached):

[1] Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

[2] The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

[3] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

[4] As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

[5] Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

[6] This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.