THIS DATA PROCESSING ADDENDUM (“DPA”) is entered into as of the Addendum Effective Date by and between: (1) Tecton, Inc., a Delaware corporation with its principal business address at 548 Market Street, PMB 28021, San Francisco, CA 94104 (“Tecton”); and (2) the entity or person who is a counterparty to the Agreement (as defined below) into which this DPA is incorporated and forms a part (“Customer”).
1.1. In this DPA the following terms shall have the meanings set out in this Paragraph 1, unless expressly stated otherwise:
(a) “Addendum Effective Date” means the effective date of the Agreement.
(b) “Agreement” means the Platform-as-a-Service Agreement entered into by and between the parties.
(c) “CCPA” means the California Consumer Privacy Act 2018 together with any subordinate legislation or regulations.
(d) “CCPA Terms” means the CCPA-specific terms set out in Schedule 4.
(e) “Cessation Date” has the meaning given in Paragraph 9.1.
(f) “Customer Personal Data” means Personal Data that is Processed by or on behalf of Tecton on behalf of Customer under the Agreement.
(g) “Data Protection Laws” means all applicable laws in any jurisdiction relating to privacy or the Processing of Personal Data, including (without limitation) the GDPR and CCPA.
(h) “Data Subject Request” means the exercise by Data Subjects of their rights under, and in accordance with, Data Protection Laws, in respect of Customer Personal Data.
(i) “Data Subject” means the identified or identifiable natural person to whom Customer Personal Data relates.
(j) “EEA” means the European Economic Area.
(k) “GDPR” means, as and where applicable:
(i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “EU GDPR”); and/or
(ii) the EU GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended (including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (the “UK GDPR”).
References to “Articles” and “Chapters” of, and other relevant defined terms in, the GDPR shall be construed accordingly.
(l) “HIPAA” means the Health Insurance Portability and Accountability Act of 1996.
(m) “Personal Data” means ‘personal data’ as defined in the GDPR, as well as any ‘personal information’, or ‘personally identifiable information’ defined in Data Protection Laws, or information of a similar character regulated thereby.
(n) “Personnel” means a person’s employees, agents, consultants or contractors.
(o) “Processing” and other inflections of “Process” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
(p) “Post-cessation Storage Period” has the meaning given in Paragraph 9.2.
(q) “Relevant Body”:
(i) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office and/or UK Government (as and where applicable); and/or
(ii) in the context of the EEA and EU GDPR, means the European Commission.
(r) “Restricted Country”:
(i) in the context of the UK, means a country or territory outside the UK; and
(ii) in the context of the EEA, means a country or territory outside the EEA,
that the Relevant Body has not deemed to provide an ‘adequate’ level of protection for Personal Data pursuant to a decision made in accordance Article 45(1) of the GDPR.
(s) “Restricted Transfer” means the disclosure, grant of access or other transfer of Personal Data to any person, either:
(i) in the context of the UK GDPR, in a country or territory outside the UK (“UK Restricted Transfer”); and/or
(ii) in the context of the EU GDPR, in a country or territory outside the EEA (“EEA Restricted Transfer”),
which the Relevant Body has not deemed to provide an ‘adequate’ level of protection for Personal Data under Article 45 of the GDPR and which would be restricted without the application of a specific transfer mechanism under Chapter V of the GDPR.
(t) “Security Incident” means a breach of security leading to the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of, or access to, Personal Data in Tecton’s possession, custody or control, and includes a Personal Data Breach.
(u) “Service Data” means any data relating to the Customer’s and its users’ use, support and/or operation of the Services, which is collected directly by Tecton for use for its own purposes (certain of which may constitute Personal Data).
(v) “Services” means those services and activities to be supplied to or carried out by or on behalf of Tecton for Customer pursuant to the Agreement.
(w) “SCCs” means the standard contractual clauses approved by the European Commission pursuant to implementing Decision (EU) 2021/914, attached hereto as Schedule 2.
(x) “Subprocessor” means any third party appointed by or on behalf of Tecton to Process Customer Personal Data.
(y) “Subprocessor List” means the list of Subprocessors appointed by Tecton, as set out at https://www.tecton.ai/authorized-subprocessors/ and updated from time-to-time.
(z) “Supervisory Authority”:
(i) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office;
(ii) in the context of the EEA and EU GDPR, shall have the meaning given to that term in Article 4(21) of the EU GDPR; and
(iii) in the context of any other Data Protection Laws, means any regulatory, governmental, or independent public authority with jurisdiction over all or any part of enforcement of those Data Protection Laws.
(aa) “UK Transfer Addendum” means the template Addendum B.1.0 issued by the United Kingdom’s Information Commissioner’s Office and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of the Mandatory Clauses included in Part 2 thereof (the “UK Mandatory Clauses”).
1.2. In this DPA:
(a) the terms, “Controller”, “Processor”, and “Personal Data Breach” shall have the meaning ascribed to the corresponding or equivalent terms in Data Protection Laws; and
(b) unless otherwise defined in this DPA, all capitalised terms in this DPA shall have the meaning given to them in the Agreement.
2. PROCESSING OF CUSTOMER PERSONAL DATA
(a) comply with relevant Data Protection Laws in Processing Customer Personal Data; and
(b) not Process Customer Personal Data other than:
(i) on Customer’s instructions (subject always to Paragraph 2.6); and
(ii) as required by applicable laws.
2.2. To the extent permitted by applicable laws, Tecton shall inform Customer of:
(a) any Processing to be carried out under Paragraph 2.1(b)(ii); and
(b) the relevant legal requirements that require it to carry out such Processing,
before the relevant Processing of that Customer Personal Data.
2.3. Customer instructs Tecton to Process Customer Personal Data as necessary:
(a) to provide the Services to Customer; and
(b) to perform Tecton’s obligations and exercise Tecton’s rights under the Agreement.
2.4. Schedule 1 (Data Processing Details) sets out certain information regarding Tecton’s Processing of Customer Personal Data. Nothing in Schedule 1 (Data Processing Details) confers any right or imposes any obligation on any party to this DPA.
2.6. Customer acknowledges and agrees that any instructions issued by Customer with regards to the Processing of Customer Personal Data by or on behalf of Tecton pursuant to or in connection with the Agreement:
(a) shall be strictly required for the sole purpose of ensuring compliance with Data Protection Laws; and
(b) shall not relate to the scope of, or otherwise materially change, the Services to be provided by Tecton under the Agreement.
2.7. Notwithstanding anything to the contrary herein, Tecton may terminate the Agreement in its entirety upon written notice to Customer with immediate effect if Tecton considers (in its reasonable discretion) that:
(a) it is unable to adhere to, perform or implement any instructions issued by Customer due to the technical limitations of its systems, equipment and/or facilities; and/or
(b) to adhere to, perform or implement any such instructions would require disproportionate effort (whether in terms of time, cost, available technology, manpower or otherwise).
2.8. Customer represents and warrants on an ongoing basis that, for the purposes of all Data Protection Laws (including Article 6, Article 9(2) and/or Article 10 of the GDPR (where applicable)) there is, and will be throughout the term of the Agreement, a valid legal basis for the Processing by Tecton of Customer Personal Data in accordance with this DPA and the Agreement (including, any and all instructions issued by Customer from time to time in respect of such Processing).
Tecton shall take reasonable steps to ensure the reliability of any Tecton Personnel who Process Customer Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1. 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 (which may be of varying likelihood and severity) for the rights and freedoms of natural persons, Tecton shall implement appropriate technical and organisational measures in relation to Customer Personal Data to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2. In assessing the appropriate level of security, Tecton shall take account in particular of the risks presented by the Processing, in particular from a Security Incident.
4.3. Without limiting the generality of Paragraphs 4.1 and 4.2, Tecton shall endeavour to comply with the security measures set out in Schedule 3.
5.1. Customer generally authorises Tecton to appoint Subprocessors in accordance with this Paragraph 5.
5.2. Tecton may continue to use those Subprocessors already engaged by Tecton as at the date of this DPA (as those Subprocessors are shown, together with their respective functions and locations, in the Subprocessor List.
5.3. Tecton shall give Customer prior written notice of the appointment of any proposed Subprocessor, including reasonable details of the Processing to be undertaken by the Subprocessor, by providing Customer with an updated copy of the Subprocessor List via a ‘mailshot’ or similar bulk distribution mechanism sent via email to Customer’s normal addressees for system updates. If, within five (5) days of receipt of that notice, Customer notifies Tecton in writing of any objections (on reasonable grounds) to the proposed appointment:
(a) Tecton shall use reasonable efforts to make available a commercially reasonable change in the provision of the Services, which avoids the use of that proposed Subprocessor; and
(b) where:
(i) such a change cannot be made within fourteen (14) days days from Tecton’s receipt of Customer’s notice;
(ii) no commercially reasonable change is available; and/or
(iii) Customer declines to bear the cost of the proposed change,
either party may by written notice to the other party with immediate effect terminate the Agreement either in whole or to the extent that it relates to the Services which require the use of the proposed Subprocessor.
5.4. If Customer does not object to Tecton’s appointment of a Subprocessor during the five (5) day period referred to in Paragraph 5.3, Customer shall be deemed to have approved the engagement and ongoing use of that Subprocessor.
5.5. With respect to each Subprocessor, Tecton shall ensure that the arrangement between Tecton and the Subprocessor is governed by a written contract including terms which offer at least an equivalent level of protection for Customer Personal Data as those set out in this DPA (including those set out in Paragraph 4). Where required by Data Protection Laws, Tecton shall remain liable for any breach of this DPA caused by a Subprocessor.
5.6. Operational clarifications relevant to the SCCs:
(a) The terms and conditions of this Paragraph 5 apply in relation to Tecton’s appointment and use of Subprocessors under the SCCs.
(b) Any approval by Customer of Tecton’s appointment of a Subprocessor that is given expressly or deemed given pursuant to this Paragraph 5 constitutes Customer’s documented instructions to effect onwards transfers to any relevant Subprocessors if and as required under Clause 8.8 of the SCCs.
6.1. Taking into account the nature of the Processing, Tecton shall provide Customer with such assistance as may be reasonably necessary and technically possible in the circumstances, to assist Customer in fulfilling its obligations under Data Protection Laws to respond to Data Subject Requests.
6.2. Tecton shall:
(a) promptly notify Customer if it receives a Data Subject Request; and
(b) ensure that it does not respond to any Data Subject Request except on the written instructions of Customer (and in such circumstances, at Customer’s cost) or as required by applicable laws.
6.3. Operational clarifications:
(a) When complying with its transparency obligations under Clause 8.3 of the SCCs, Customer agrees that it shall not provide or otherwise make available, and shall take all appropriate steps to protect, Tecton’s and its licensors’ trade secrets, business secrets, confidential information and/or other commercially sensitive information.
(b) Where applicable, for the purposes of Clause 10(a) of Module Three of the SCCs, Customer acknowledges and agrees that there are no circumstances in which it would be appropriate for Tecton to notify any third party controller of any Data Subject Request and that any such notification shall be the sole responsibility of Customer.
(c) For the purposes of Clause 15.1(a) of the SCCs, except to the extent prohibited by applicable law and/or the relevant public authority, as between the Parties, Customer agrees that it shall be solely responsible for making any notifications to relevant Data Subject(s) if and as required.
(d) Except to the extent prohibited by applicable law, Customer shall be fully responsible for any costs arising from Tecton’s provision of any cooperation and assistance provided under this Paragraph 6, and shall on demand reimburse Tecton any such costs incurred by Tecton.
(a) affected Data Subjects; or
(b) the relevant Supervisory Authority(ies).
8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
8.1. Tecton shall provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with Supervisory Authorities, which Customer reasonably considers to be required of it by Article 35 or Article 36 of the GDPR, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing by, and information available to, Tecton.
8.2. Operational clarification: To the extent legally permitted, Customer shall be fully responsible for any costs arising from Tecton’s provision of any cooperation and assistance provided under Paragraph 8.1, and shall on demand reimburse Tecton any such costs incurred by Tecton.
9. DELETION OR RETURN OBLIGATIONS
9.1. Subject to Paragraphs 9.2 and 9.5, upon the date of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date”), Tecton shall immediately cease all Processing of Customer Personal Data for any purpose other than for storage.
9.2. Subject to Paragraph 9.5, to the extent technically possible in the circumstances (as determined in Tecton’s sole discretion), on written request to Tecton (to be made no later than fourteen (14) days after the Cessation Date (“Post-cessation Storage Period”)), Tecton shall:
(a) return a complete copy of all Customer Personal Data within Tecton’s possession to Customer by secure file transfer, promptly following which Tecton shall delete all other copies of such Customer Personal Data; or
(b) delete all Customer Personal Data then within Tecton’s possession.
9.3. Tecton shall comply with any written request made pursuant to Paragraph 9.2 within thirty (30) days thereof.
9.4. In the event that during the Post-cessation Storage Period, Customer does not instruct Tecton in writing to either delete or return Customer Personal Data pursuant to Paragraph 9.2, Tecton shall promptly after the expiry of the Post-cessation Storage Period either (at its option) delete; or irreversibly render anonymous, all Customer Personal Data then within Tecton’s possession to the fullest extent technically possible in the circumstances.
(a) the confidentiality of all such Customer Personal Data; and
(b) that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable law requiring its storage and for no other purpose.
9.6. Operational clarification relevant to SCCs. Certification of deletion of Customer Personal Data as described in Clauses 8.5 and 16(d) of the SCCs shall be provided only upon Customer’s written request.
10.1. Tecton shall make available to Customer on request such information as Tecton (acting reasonably) considers appropriate in the circumstances to demonstrate its compliance with this DPA.
10.2. Subject to Paragraphs 10.3 and 10.4, in the event that Customer (acting reasonably) is able to provide documentary evidence that the information made available by Tecton pursuant to Paragraph 10.1 is not sufficient in the circumstances to demonstrate Tecton’s compliance with this DPA, Tecton shall allow for and contribute to audits, including on‑premise inspections, by Customer or an auditor mandated by Customer in relation to the Processing of Customer Personal Data by Tecton.
10.3. Customer shall give Tecton reasonable notice of any audit or inspection to be conducted under Paragraph 10.1 (which shall in no event be less than fourteen (14) days’ notice unless otherwise required by a Supervisory Authority) and shall use its best efforts (and ensure that each of its mandated auditors uses its best efforts) to avoid causing, and hereby indemnifies Tecton in respect of, any damage, injury or disruption to Tecton’s premises, equipment, Personnel, data, and business (including any interference with the confidentiality or security of the data of Tecton’s other customers or the availability of Tecton’s services to such other customers) while its Personnel and/or its auditor’s Personnel (if applicable) are on those premises in the course of any on‑premise inspection.
10.4. Tecton need not give access to its premises for the purposes of such an audit or inspection:
(a) to any individual unless he or she produces reasonable evidence of their identity and authority;
(b) to any auditor whom Tecton has not given its prior written approval (not to be unreasonably withheld);
(c) unless the auditor enters into a non-disclosure agreement with Tecton on terms acceptable to Tecton;
(d) where, and to the extent that, Tecton considers, acting reasonably, that to do so would result in interference with the confidentiality or security of the data of Tecton’s other customers or the availability of Tecton’s services to such other customers;
(e) outside normal business hours at those premises; or
on more than one occasion in any calendar year during the term of the Agreement, except for any additional audits or inspections which Customer is required to carry out under Data Protection Laws or by a Supervisory Authority.
10.5. Operational clarifications:
(a) Except to the extent prohibited by applicable law, Customer shall be fully responsible for any costs arising from Tecton’s provision of any cooperation and assistance provided under this Paragraph 10, and shall on demand reimburse Tecton any such costs incurred by Tecton.
(b) The audits described in Clauses 8.9(c) and 8.9(d) of the SCCs shall be subject to any relevant terms and conditions detailed in Paragraphs 10.3 and 10.4.
11.1. The Parties acknowledge that Customer’s transmission of Customer Personal Data to Tecton hereunder may involve a Restricted Transfer. The SCCs (including as varied by the UK Transfer Addendum (where applicable)) that may be entered into under Paragraph 11.2 and/or 11.4 shall apply and have effect only if and to the extent permitted and required under the EU GDPR and/or UK GDPR (if and as applicable) to establish a valid basis under Chapter V of the EU GDPR and/or UK GDPR in respect of the transfer to Tecton of Customer Personal Data.
11.2. To the extent that any Processing of Customer Personal Data under this DPA involves an EU Restricted Transfer, the Parties shall comply with their respective obligations set out in the SCCs, which are hereby deemed entered into by the Parties and incorporated into this DPA.
(a) Module 2 of the SCCs applies to any EU Restricted Transfer involving Processing of Customer Personal Data in respect of which Customer is a Controller in its own right; and/or
(b) Module 3 of the SCCs applies to any EU Restricted Transfer involving Processing of Customer Personal Data in respect of which Customer is itself acting as a Processor on behalf of any other person.
(a) Part 1 to the UK Transfer Addendum. The Parties agree:
(i) Tables 1, 2 and 3 to the UK Transfer Addendum are deemed populated with the corresponding details set out in Schedule 1 (Data Processing Details) to the DPA with applicable Module(s) determined in accordance with Paragraph 11.3 (subject to the variations effected by the UK Mandatory Clauses described in (b) below); and
(ii) Table 4 to the UK Transfer Addendum is completed by only ‘Data Importer’ being selected.
(b) Part 2 to the UK Transfer Addendum. The Parties agree to be bound by the UK Mandatory Clauses of the UK Transfer Addendum.
11.5. As permitted by Section 17 of the UK Mandatory Clauses, the Parties agree to the presentation of the information required by ‘Part 1: Tables’ of the UK Transfer Addendum in the manner set out in Paragraph 11.4; provided that the Parties further agree that nothing in the manner of that presentation shall operate or be construed so as to reduce the Appropriate Safeguards (as defined in Section 3 of the UK Mandatory Clauses).
11.6. In relation to any UK Restricted Transfer to which they apply, where the context permits and requires, any reference in the DPA to the SCCs, shall be read as a reference to those SCCs as varied in the manner set out in Paragraph 11.4 of this Part 2.
Adoption of new transfer mechanism
11.7. Notwithstanding the generality of Paragraph 16, Tecton may on notice vary this DPA and replace the relevant SCCs with another transfer mechanism other than the SCCs and/or UK Transfer Addendum (as applicable) that enables the lawful transfer of Personal Data to Tecton under this DPA in compliance with Chapter V of the GDPR.
12. CCPA TERMS
To the extent Tecton processes Customer Personal Data subject to the CCPA, the CCPA Terms shall apply in addition to the terms of this DPA.
13. SERVICE DATA
(a) for accounting, tax, billing, audit, and compliance purposes;
(b) to provide, improve, develop, optimise and maintain the Services;
(c) to investigate fraud, spam, wrongful or unlawful use of the Services; and/or
(d) as otherwise required by applicable law.
13.2. In respect of any such Processing described in Paragraph 13.1, Tecton:
(a) independently determines the purposes and means of such Processing;
(b) shall comply with Data Protection Laws if and as applicable;
(c) shall Process such Service Data as described in Tecton’s relevant privacy notices/policies (such as that shown at https://www.tecton.ai/privacy-policy/ as updated from time to time); and
(d) where possible, shall apply technical and organizational safeguards to any relevant Personal Data that are no less protective than those required by this DPA.
13.3. For the avoidance of doubt, this DPA shall not apply to Tecton’s collection, use, disclosure or other Processing of Service Data.
Customer shall not provide or otherwise make available to Tecton any Personal Data that contains any (a) Social Security numbers or other government-issued identification numbers; (b) protected health information subject to the HIPAA or other information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; (c) health insurance information; (d) biometric information; (e) passwords to any online accounts; (f) credentials to any financial accounts; (g) tax return data; (h) any payment card information subject to the Payment Card Industry Data Security Standard; (i) Personal Data of children under 13 years of age; or (j) any other information that falls within any special categories of personal data (as defined in GDPR) and/or data relating to criminal convictions and offences or related security measures (together, “Restricted Data”).
15. INCORPORATION AND PRECEDENCE
15.1. This DPA shall be incorporated into and form part of the Agreement with effect from the Addendum Effective Date.
15.2. In the event of any conflict or inconsistency between:
(a) this DPA and the Agreement, the provisions in this DPA shall prevail to the extent of such conflict or inconsistency;
(b) any SCCs that may apply in accordance with Paragraph 11.2 and/or 11.4 and this DPA and/or the Agreement, those SCCs shall prevail in the context of the Restricted Transfer(s) to which they apply to the extent of any such conflict or inconsistency;
(c) the CCPA Terms and rest of this Data Processing Agreement, the CCPA Terms shall prevail in the context of Customer Personal Data subject to the CCPA to the extent of any such conflict or inconsistency; or
(d) this DPA and a business associate agreement applicable to any patient, medical, or other protected health information regulated by HIPAA (“HIPAA Data”), the business associate agreement shall prevail to the extent the conflict relates to HIPAA Data.
(a) determines that it is unable for any reason to comply with its obligations under this DPA and Tecton cannot cure this inability to comply using commercially reasonable efforts; or
(b) becomes aware of any circumstance or change in law that is likely to have a substantial adverse effect on Tecton’s ability to meet its obligations under this DPA,
Tecton shall promptly notify Customer thereof, in which case Tecton will have the right to temporarily suspend its Processing of Customer Personal Data, without liability, until such time that the Processing is adjusted in such a manner that the non-compliance is remediated. To the extent such adjustment is not possible within twenty-eight 28 days of Tecton’s notification to Customer, either party shall have the right to terminate the relevant part of such Processing by Tecton.
The total aggregate liability of either party towards the other party, howsoever arising, under or in connection with this DPA and the SCCs (if and as they apply) will under no circumstances exceed any limitations or caps on, and shall be subject to any exclusions of, liability and loss agreed by the parties in the Agreement; provided that, nothing in this Paragraph 17 will affect any person’s liability to Data Subjects under the third party beneficiary provisions of the SCCs (if and as they apply).
DATA PROCESSING DETAILS
This Schedule 1 includes certain details of the Processing of Customer Personal Data.
Tecton / ‘data importer’ details
Name: | Tecton, Inc. |
Address: | 548 Market Street, PMB 28021, San Francisco, CA 94104 |
Contact Details: | Name: Mehdi Ali Role: Legal Counsel Email: mehdi@tecton.ai |
Tecton Activities: | Provider of a platform‑as‑a‑service solution and technologies that may be utilised for the purpose of developing and using machine learning features and applications. |
Role (controller/processor): | Processor |
Customer / ‘data exporter’ details
Name: | Customer, being the entity or other person who is a counterparty to the Agreement. |
Address: | Customer’s address is: · the address shown in the Order Form entered into by and between the Customer and Tecton associated with the Agreement (“Order Form”); or · if no such Order Form has been agreed, the Customer’s principal business trading address. |
Contact Details: | Customer’s address contact details are: · the contact details shown in the Order Form; or · if no such Order Form has been agreed, the Customer’s contact details submitted by Customer and associated with Customer’s account for the Services. |
Customer Activities: | Customer’s activities relevant to this DPA are the use and receipt of the Services to enable the development and use of machine-learning features and applications. |
Role (controller/processor): | · Controller – in respect of any EU Restricted Transfer, which involves Processing of Personal Data in respect of which Customer is a Controller in its own right; and · Processor – in respect of any EU Restricted Transfer, which involves Processing of Personal Data in respect of which Customer is itself acting as a Processor on behalf of any other person (including its affiliates if and where applicable). |
Details of Processing
Categories of Data Subjects: | Any individuals’ whose Personal Data is comprised within Customer Data, which will be as determined by Customer in its sole discretion through its use of the Services – but may include Customer’s and its affiliates’: · “Staff”, namely: o employees and non-employee workers; o students, interns, apprentices and volunteers; o directors and officers; o advisers, consultants, independent contractors, agents and autonomous, temporary or casual workers. · Customers, clients, (sub-)licensees, users and end-users, website visitors and marketing prospects. · Vendors, service providers, consultants, suppliers, and other providers of goods or services · Distributors, resellers, sales agents, introducers, sales representatives, collaborators, joint‑venturers and other commercial partners. · Shareholders, partners, members and supporters. · Advisers, consultants and other professionals and experts. Where any of the above is a business or organisation, it includes their Staff. Each category includes current, past and prospective Data Subjects. |
Categories of Personal Data: | Any Personal Data comprised within Customer Data, which will be as determined by Customer in its sole discretion through its use of the Services – but may include: · Personal details, including any information that identifies the Data Subject and their personal characteristics, including: name, address, contact details (including email address, telephone details and other contact information), age, date of birth, sex, and physical description. · Personal details issued as an identifier by a public authority, including passport details, national insurance numbers, identity card numbers, driving licence details.
|
Sensitive Categories of Data, and associated additional restrictions/safeguards: | Categories of sensitive data: None – as noted in Section 14 of the DPA, Customer agrees that Restricted Data, which includes ‘sensitive data’ (as defined in Clause 8.7 of the SCCs), must not be provided or otherwise made available to Tecton without Tecton’s prior written consent. Additional safeguards for sensitive data: If Tecton provides its consent in accordance with Section 14 of the DPA to the provision or making available of any such sensitive data, or Customer breaches Section 14 of the DPA and provides such data without such consent, Customer acknowledges that Tecton provides uniform standards of information and data security across the board to all relevant data types in the manner determined by and set out in Schedule 3 to the DPA. |
Nature of the Processing: | Processing operations required in order to provide the Services. |
Purpose of the Processing: | Customer Personal Data will be processed: (i) as necessary to provide the Services, (ii) as initiated by Customer in its use of the Services, and (iii) to comply with any other reasonable instructions provided by Customer in accorded with the terms of this DPA. |
Duration of Processing / Retention Period: | Customer Personal Data will be processed as outlined in Paragraph 9 (Deletion or return obligations) of this DPA and in accordance with Tecton’s data retention policy. |
Transfers to (sub-)processors: | Transfers to Subprocessors are as, and for the purposes, described from time to time in the Subprocessor List. |
SCCs
Notes:
· The SCCs set out in this Schedule 2 are incorporated into and form an effective part of the DPA (if and where applicable in accordance with Paragraph 11.2 and/or 11.4 of the DPA).
· Unless otherwise defined in this Schedule 2, capitalised terms used in this Schedule 2 have the meanings given to them in the DPA.
· The modules detailed in these SCCs shall apply in the manner determined by Paragraph 11.3 of the DPA, and having regard to the respective roles of the parties determined by Schedule 1.
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 –Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Modules Two and Three: Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
Docking clause
[NOT USED]
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.
MODULE TWO: Transfer controller to processor
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.
MODULE THREE: Transfer processor to processor
8.1 Instructions
(a) The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
(b) The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
(c) The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
(d) The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and 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, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and 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 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, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
(iii) the onward transfer is necessary for the establishment, exercise or 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 or the controller that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.
(c) The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
(d) The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
(f) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(g) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
MODULE TWO: Transfer controller to processor
(a) OPTION 1: SPECIFIC PRIOR AUTHORISATION [NOT USED]
OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least the advance notice period determined by Paragraph 5.3 of the DPA into which these Clauses are incorporated, 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.
MODULE THREE: Transfer processor to processor
(a) OPTION 1: SPECIFIC PRIOR AUTHORISATION [NOT USED]
OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least the advance notice period determined by Paragraph 5.3 of the DPA into which these Clauses are incorporated, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
MODULE TWO: Transfer controller to processor
(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.
MODULE THREE: Transfer processor to processor
(a) The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
(b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in ANNEX II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(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
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(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
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a)
Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(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). [For Module Three: The data exporter shall forward the notification to the controller.]
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer 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 [for Module Three:, if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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.
For Module Three: The data exporter shall forward the notification to the controller.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data 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. [For Module Three: The data exporter shall make the assessment available to the controller.]
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Clause 18
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
DATA EXPORTER:
Name: Customer
Address: as set out in Schedule 1 of the DPA.
Contact person’s name, position and contact details: as set out in Schedule 1 of the DPA.
Activities relevant to the data transferred under these Clauses: as set out in Schedule 1 of the DPA.
Signature and date: these Clauses are entered into by Customer under and in accordance with Paragraph 11.2 of the DPA with effect from the Addendum Effective Date.
Role (controller/processor): as set out in Schedule 1 of the DPA.
DATA IMPORTER:
Name: Tecton
Address: as set out in Schedule 1 of the DPA.
Contact person’s name, position and contact details: as set out in Schedule 1 of the DPA.
Activities relevant to the data transferred under these Clauses: as set out in Schedule 1 of the DPA.
Signature and date: these Clauses are entered into by Tecton under and in accordance with Paragraph 11.2 of the DPA with effect from the Addendum Effective Date.
Role (controller/processor): as set out in Schedule 1 of the DPA.
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Categories of data subjects whose personal data is transferred: as set out in Schedule 1 of the DPA.
Categories of personal data transferred: as set out in Schedule 1 of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards: as set out in Schedule 1 of the DPA.
The frequency of the transfer: ongoing – as initiated by the Customer in and through its use, or use on its behalf, of the Services.
Nature of the processing: as set out in Schedule 1 of the DPA.
Purpose(s) of the data transfer and further processing: as set out in Schedule 1 of the DPA.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: as set out in Schedule 1 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: as set out in Schedule 1 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
The competent supervisory authority shall be determined as follows:
· Where Customer is established in an EU Member State: the competent supervisory authority shall be the supervisory authority of that EU Member State in which Customer is established.
· Where Customer is not established in an EU Member State, Article 3(2) of the GDPR applies and Customer has appointed an EU representative under Article 27 of the GDPR: the competent supervisory authority shall be the supervisory authority of the EU Member State in which Customer’s EU representative relevant to the processing hereunder is based (from time-to-time).
· Where Customer is not established in an EU Member State, Article 3(2) of the GDPR applies, but Customer has not appointed an EU representative under Article 27 of the GDPR, the competent supervisory authority shall be the supervisory authority of the EU Member State notified in writing to Tecton’s contact point for data protection identified in Schedule 1 of the DPA, which must be an EU Member State 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.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
General:
Subprocessors: When Tecton engages a Subprocessor under these Clauses, Tecton shall enter into a binding contractual arrangement with such Subprocessor that imposes upon them data protection obligations which, in substance, meet or exceed the relevant standards required under these Clauses and the DPA – including in respect of:
SCHEDULE 3
SECURITY MEASURES
Tecton will implement and maintain at least the following security measures set out in this Schedule 3 in respect of Customer Personal Data Processed under this DPA:
1. Organisational management and dedicated staff responsible for the development, implementation and maintenance of Tecton’s information security program.
2. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Tecton’s organisation, monitoring and maintaining compliance with Tecton’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
3. Data security controls which include at a minimum, but may not be limited to, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilisation of commercially available and industry standard encryption technologies for Personal Data that is:
(a) transmitted over public networks (i.e. the Internet) or when transmitted wirelessly – which shall be encrypted using modern Transport Layer Security protocols; or
(b) at rest or stored on portable or removable media (i.e. laptop computers, CD/DVD, USB drives, back-up tapes) – which shall be encrypted using Advanced Encryption Standard (AES) 256-bit encryption.
4. Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access when employment terminates or changes in job functions occur).
5. Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that Tecton passwords that are assigned to its employees must:
(a) be at least eight (8) characters in length;
(b) not be stored in readable format on Tecton’s computer systems;
(c) have defined complexity;
(d) have a history threshold to prevent reuse of recent passwords; and
(e) if newly-issued, be changed after first use.
6. Physical and environmental security of data centre, server room facilities and other areas containing Personal Data designed to:
(a) protect information assets from unauthorised physical access,
(b) manage, monitor and log movement of persons into and out of Tecton facilities, and
(c) guard against environmental hazards such as heat, fire and water damage.
7. Change management procedures and tracking mechanisms designed to test, approve and monitor all changes to Tecton’s technology and information assets.
8. Incident / problem management procedures designed to allow Tecton to investigate, respond to, mitigate and notify of events related to Tecton’s technology and information assets.
9. Network security controls that provide for the use of enterprise firewalls (or network devices), and intrusion detection systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
10. Vulnerability assessment and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
11. Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.
Tecton may update or modify these security measures from time to time provided that such updates and modifications do not materially decrease the overall security of the services and/or relevant Customer Personal Data.
SCHEDULE 4
CCPA TERMS
1. The definitions of “Controller” includes “Business”; “Processor” includes “Service Provider”; “Data Subject” includes “Consumer”; “Personal Data” includes “Personal Information”; in each case as defined under CCPA.
2. For this Schedule 4 only, “Permitted Purposes” shall include processing Customer Personal Data only for the purposes described in this DPA and in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, as otherwise agreed in writing, or as otherwise may be permitted for “service providers” under the CCPA.
3. Tecton’s obligations regarding data subject requests, as described in Paragraph 6 (Data Subject Rights) of this DPA, apply to Consumer’s rights under the CCPA.
4. Notwithstanding any use restriction contained elsewhere in this DPA, Tecton shall process Customer Personal Data only to perform the Services, for the Permitted Purposes and/or in accordance with Customer’s documented lawful instructions, except where otherwise required by applicable law.
5. Tecton may de-identify or aggregate Customer Personal Data as part of performing the Services specified in this DPA and the Agreement.
