Data Processing Addendum

This Data Processing Addendum (“DPA”), including all schedules and appendices, is incorporated by reference and forms part of the Master Services Agreement (the “Agreement”) between DataGrail, Inc., a Delaware corporation (“DataGrail) and Customer (each, a “Party” and, collectively, the “Parties”). Unless expressly defined otherwise herein, all capitalized terms used in this DPA shall have the meanings given to them in the Agreement.

(1) DEFINITIONS.

In this DPA, the following terms shall have the following meanings unless expressly stated to the contrary .

(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of 50% or more of the voting interests of the subject entity.

(b) “Authorized Affiliate” means any of Customer’s Affiliates that is permitted to use the Services pursuant to the Agreement but has not signed its own agreement with DataGrail.

(c) “CCPA” means California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

(d) “Controller” means the entity which controls the purposes and means of the Processing of Personal Data.

(e) “Customer” means the entity identified as Customer in the Agreement.

(f) “Customer Personal Data” means that portion of Customer Data that is classified as Personal Data and is subject to any Data Protection Laws.

(g) “Data Protection Law(s)” means all laws and regulations applicable to the Processing of Personal Data under the Agreement.

(h) “Data Security Breach” means any known breach of DataGrail’s minimum information security requirements that results in the unauthorized or unlawful loss, disclosure of, or access to, Customer Personal Data.

(i) “Data Subject” means the identified or identifiable person to whom Personal Data relates.

(j) “Data Subject Request” means a request from a Data Subject to exercise rights provided to them under any Data Protection Laws.

(k) “DPA Schedule(s)” means any schedule that is incorporated by this reference into and forms a part of this DPA to address specific requirements under any Data Protection Laws.

(l) “ GDPR” means 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, and repealing Directive 95/46/EC (General Data Protection Regulation), including as implemented or adopted under the laws of the United Kingdom.

(m) “Personal Data” means any information relating to an identified or identifiable natural person.

(n) “Processing” means any operation or set of operations which is performed upon Customer Personal Data by the Services, whether or not by automatic means, including:

(i) organization, adaptation, amendment or alteration of Personal Data; or

(ii) retrieval, consultation or use of Personal Data; or

(iii) disclosure of the information or Personal Data by transmission, dissemination or otherwise making available to any third party or the public; or

(iv) alignment, combination, blocking, erasure or destruction of the Personal Data; and/or

(v) any additional meaning given in the Data Protection Laws.

(o) “Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable, any “service provider” as such term is defined under CCPA.

(p) "Services" means the services to be delivered by or on behalf of DataGrail under the Agreement.

(q) “Sub-Processor” means any Processor engaged by DataGrail.

(r) "EU Standard Contractual Clauses" means, in relation to the Processing of Personal Data pursuant to this DPA, the Module 2 model clauses for the transfer of Personal Data to Data Processors established in third countries approved by the European Commission and the United Kingdom, from time to time the approved version of which in force at present is set forth in Schedule 1 of this DPA.

(s) “UK Standard Contractual Clauses Addendum” means the EU Standard Contractual Clauses, as amended by the U.K. Information Commissioner’s Office (“ICO”) for use the transfer of data from the U.K. effective March 21, 2022 located at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf, as may be amended or replaced by the ICO from time to time.

(2) CONTRACTUAL RELATIONSHIP.

(a) Relationship with Authorized Affiliates. If Customer Personal Data includes any Personal Data from Authorized Affiliates, then to the extent required and permitted under applicable Data Protection Laws and Regulations, Customer enters into this DPA for its Authorized Affiliates. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.

(b) Communications. Customer remains solely responsible for managing all communication with DataGrail under this DPA and will make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

(c) Rights of Authorized Affiliates.

(ii)  Except where Data Protection Laws require an Authorized Affiliate to exercise a right or seek a remedy against DataGrail on its own behalf, the Customer shall exercise any right or seek any remedy on behalf of the Authorized Affiliates and where multiple Authorized Affiliates are involved, shall exercise such rights under this DPA in a combined manner for itself and on behalf of all of its Authorized Affiliates together.

(iii) In the event Customer seeks to carry out an audit of procedures relevant to the protection of Customer Personal Data under this DPA, the Customer shall take all reasonable measures to limit any impact on DataGrail and its Sub-Processors by combining, to the extent reasonably possible, any audit requests carried out on behalf of itself and its Authorized Affiliates in one single audit.

(3)     PROCESSING OF PERSONAL DATA.

(a) General. Each Party’s Processing of Customer Personal Data shall comply with all applicable Data Protection Laws, this DPA, and any applicable DPA Schedule.

(b) Role of the Parties. The Parties acknowledge and agree that for the purposes of Processing Customer Personal Data under the Agreement, Customer acts as a Controller and DataGrail acts as Processor.

(c) Processing of Personal Data in Accordance with Customer Instructions. Customer acknowledges and agrees that this DPA, the Agreement, and Customer’s use or configuration of the Services to perform any Processing of Customer Personal Data (including Processing initiated by Customer in its use of the Services) constitute Customer’s documented instructions regarding DataGrail’s Processing of Customer Personal Data (“Documented Customer Instructions”). DataGrail will Process Customer Personal Data only in accordance with Documented Customer Instructions. Additional instructions outside the scope of the Documented Customer Instructions (if any) require prior written agreement between Customer and DataGrail. With respect to Customer’s use or configuration of the Services to perform any Processing of Customer Personal Data, Customer acknowledges that it is solely responsible for ensuring that its Documented Customer Instructions to DataGrail for the Processing of Customer Personal Data comply with all applicable Data Protection Laws.

(d) Data Subject Rights . Taking into account the nature of the Processing, DataGrail shall assist Customer, by appropriate technical and organizational measures, to respond to Data Subject Requests, within such reasonable timelines as specified by the Customer. DataGrail may assist the Customer in fulfilling Customer’s obligation to respond to Data Subject Requests through the use of tools (“Automated DSAR Tools”) that enable DataGrail to respond in an automated fashion to certain Data Subject Requests to delete, stop processing, or opt-out of sale of the Data Subject’s Personal Data. If a Data Subject Request is made by a Data Subject through any Automated DSAR Tool, then to the extent legally permitted and authorized by the Customer, DataGrail will automatically respond to the Data Subject Request in an automated fashion in accordance with the standard functionality of the Automated DSAR Tool. To the extent legally permitted, Customer shall be responsible for any costs arising from DataGrail’s provision of such assistance by its personnel and/or Automated DSAR Tools.

(4) DATAGRAIL PERSONNEL. DataGrail shall ensure that its personnel engaged in the Processing of Customer Personal Data (i) have received appropriate training regarding their responsibilities with respect to the access, use and treatment of Personal Data; and (ii) have committed themselves to confidentiality through executed written confidentiality agreements.

(5) SUB-PROCESSORS.

(a) DataGrail shall not engage any third party to Process the Customer Personal Data without the prior written consent of the Customer. Customer hereby approves all Sub-Processors identified in the list of Sub-Processors provided in Annex III of the Standard Contractual Clauses attached as Schedule 1 that will perform services necessary for DataGrail to provide the Services to Customer. Changes in Sub-Processors shall be promptly communicated to the Customer. In the event that the Customer objects to a newly proposed Sub-Processor, DataGrail will use reasonable efforts to make available to Customer a change in the Services (without reducing material functionality) to avoid Processing of Customer Personal Data by the newly proposed Sub-Processor. If DataGrail is unable to make such change available within thirty (30) days, Customer may terminate, by providing written notice to DataGrail, only those Services that cannot be provided by DataGrail without the use of the newly proposed Sub-Processor.

(b) If DataGrail engages any third party to Process any Customer Personal Data, DataGrail shall impose on such third party, by means of a written contract, data protection obligations no less protective than those in this DPA and shall ensure that, if any third-party engaged by DataGrail in turn engages another person to Process any Customer Personal Data, the third party is required to comply with all of the obligations in respect of Processing Personal Data that are imposed under this DPA. DataGrail shall remain fully liable to the Customer for Processing by any third party as if the Processing was being conducted by DataGrail.

(6) SECURITY. DataGrail shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including, from accidental or unlawful destruction, loss, alteration, unauthorised, disclosure of or access to Customer Personal Data including as appropriate: the pseudonymisation and encryption of Customer Personal Data; the ability to restore the availability and access to the Customer Personal Data in a timely manner in the event of a physical or technical incident; and a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing. DataGrail shall notify the Customer of any material changes to the technical and organisational measures applicable to the Services.

(7) DATA SECURITY BREACH NOTIFICATION. DataGrail will notify the Customer without undue delay, and where feasible, no later than forty-eight (48) hours of DataGrail becoming aware of a Data Security Breach and shall take appropriate measures to address the Data Security Breach, including measures to mitigate any adverse effects in accordance with its established procedures. DataGrail shall not communicate with any data subject with respect to a Data Security Breach without the prior written consent of the Customer.

(8) PROVISIONS SPECIFIC TO EUROPE.

(a) EU SCCs . Customer acknowledges that the use of the Services may involve the transfer of Customer Data from the EU, EEA, and Switzerland to the United States and as such, each party will comply with its respective obligations in the Standard Contractual Clauses (the “SCCs”), Module 2, Transfer Controller to Processor, as set forth in Schedule 1 to this DPA which are incorporated herein by reference. DataGrail will process all Personal Data from the E.U. in accordance with the Standard Contractual Clauses, as supplemented in this Section 8(b). For purposes of complying with the Standard Contractual Clauses, the Parties agree that DataGrail will be the “data importer” and Customer will be the “data exporter”. With respect to Clauses 8.1 and 8.2 of Module 2, Customer acknowledges that (i) the Services enable Customer to make its own configuration settings and use the Services that affect the manner of Processing of Customer Personal Data without DataGrail’s knowledge, and (ii) those configuration settings or use of the Services to Process any Customer Personal Data constitute Customer Documented Instructions. Customer is solely responsible for ensuring that those settings and its use of the Services comply with the GDPR and Module 2 of the EU SCCs.

(b) UK SCC ADDENDUM . Customer acknowledges that the use of the Services may involve the transfer of Customer Data from the UK to the United States and as such, each party will comply with its respective obligations in the UK Standard Contractual Clauses Addendum to the Processing of Personal Data from the U.K., which is incorporated herein by reference. The Parties agree that Annexes I-III of the UK Standard Contractual Clauses Addendum shall be deemed completed with the information set forth in Annexes I through III of Schedule 1 of this DPA.

(c) Demonstrating Compliance : DataGrail shall make available to Customer all information reasonably necessary to demonstrate compliance with the obligations set out in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor authorized by the Customer; provided that Customer shall provide DataGrail with at least seven days’ prior notice in advance of such audit and shall bear all the costs of conducting an audit on its behalf.

(d) Assistance. DataGrail shall assist Customer within such reasonable periods of time that allow the Customer to comply with its obligations pursuant to Article 32 (Security), Articles 33 and 34 (Data Breach Notification), Article 35 (Data Protection Impact Assessments); and Article 36 (Prior Consultation) of the GDPR and provide all information reasonably necessary to demonstrate compliance with such obligations.

(9) PROVISIONS SPECIFIC TO CALIFORNIA. For purposes of this Section 9, “Personal Information” means personal information as defined by the CCPA. With regard to Customer Personal Data containing Personal Information, DataGrail agrees that it shall not: (i) sell the Personal Information; (ii) retain, use, or disclose the Personal Information for any purpose other than for the specific purpose of performing the Services, including retaining, using, or disclosing the Personal Information for a commercial purpose other than providing the Services; or (iii) retain, use, or disclose the Personal Information outside of the direct business relationship between the Parties. DataGrail certifies that it understands and will comply with the restrictions of this Section 9 of the DPA.

(10) RETURN OR DELETION OF CUSTOMER PERSONAL DATA. On termination of the Agreement (or at any other time upon request of the Customer), DataGrail shall return and/or delete, at the election of Customer, all Customer Personal Data received and/or processed by DataGrail under the Agreement. If any applicable law or regulatory body requires DataGrail to retain any Customer Personal Data that DataGrail would otherwise be required to return or destroy, it will notify the Customer in writing of the retention requirement and establish an estimated timeline for deletion or destruction of the retained data.

(11) ENTIRE AGREEMENT; CONFLICT. This DPA includes any applicable DPA Schedules incorporated by reference. Except as supplemented by this DPA, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this DPA, the terms of the Agreement will control, except that an applicable DPA Schedule will control over this DPA and the Agreement.

SCHEDULE 1  

STANDARD CONTRACTUAL CLAUSES - MODULE 2

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

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

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

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

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

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

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

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 organizational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

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

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

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

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

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

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

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

8.7 Sensitive data

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

8.8 Onward transfers

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

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

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

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

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

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

8.9 Documentation and compliance

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

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

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

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

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

Clause 9

Use of sub-processors

(a) SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least 30 days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.

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

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

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

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

Clause 10

Data subject rights

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

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

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

Clause 11

Redress

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

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

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

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

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

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

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

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

Clause 12

Liability

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

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

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

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

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

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

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

Clause 13

Supervision

(a) The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

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

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

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

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

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

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

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

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

Clause 15

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

15.1 Notification

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

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

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

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

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

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

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

15.2 Review of legality and data minimisation

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

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

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

 

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

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

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

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

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

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

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

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

Clause 17

Governing law

These Clauses shall be governed by the law of the EU 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 the Republic of Ireland.

Clause 18

Choice of forum and jurisdiction

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

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

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

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

ANNEX I

A.   LIST OF PARTIES: Transfer controller to processor

1.

Data exporter(s):  Name: Address: Contact person’s name, position and contact details: Activities relevant to the data transferred under these Clauses: Signature and date: Role (controller/processor): Controller

 

2. Data importer(s):

.

Name: DataGrail, Inc. Address: 164 Townsend Street, Suite 12, San Francisco CA 94107 Contact person’s name, position and contact details: Daniel Barber, CEO Activities relevant to the data transferred under these Clauses: Performance of Services pursuant to the DataGrail Master Services Agreement between Customer and DataGrail (“Agreement”). Signature and date: Role (controller/processor): Processor

 

B.   DESCRIPTION OF TRANSFER: Transfer controller to processor

Categories of data subjects whose personal data is transferred

Personal Data submitted to the Services by Customer, the extent of which is determined and controlled by Customer in its sole discretion, and which may include but Personal Data relating to the following categories of data subjects:

· Prospects, customers, business partners, and vendors of Customer

· Employees of Customer’s prospects, customers, business partners and vendors

· Employees of Customer

· Customer’s users authorized by Customer to use the Services

Categories of personal data transferred

Name, email, phone, title, geo-location, and IP address.

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

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

Continuous basis depending on use of the Services by Customer.

Nature of the processing

The objective of processing of Personal Data is the performance of the Services pursuant to the Agreement.

Purpose(s) of the data transfer and further processing

DataGrail will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Customer Documented Instructions, and as generally instructed by Customer in its use of the Services.

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

The term of the Agreement.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

As per above, sub-processors will Process Personal Data as necessary to perform the Services pursuant to the Agreement. Subject to Clause 9 of the Standard Contractual Clauses, the Sub-processor will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

C.   COMPETENT SUPERVISORY AUTHORITY: Transfer controller to processor

Identify the competent supervisory authority/ies in accordance with Clause 13:

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 shall act as competent supervisory authority.

Where the data exporter is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner's Office shall act as the competent supervisory authority.

Where the data exporter is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.

ANNEX II

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

Data Importer shall implement appropriate technical and organizational measures to protect the Data that shall include, as appropriate:

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

 

For transfers to (sub-) processors, also describe the specific technical and organizational measures to be taken by the (sub-) processor to be able to provide assistance to the controller (and, for transfers from a processor to a sub-processor, to the data exporter).

ANNEX III

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors: