This Data Processing Addendum (“DPA”) is incorporated by reference into the agreement governing the use of ThoughtMetric’s services, which is either the ThoughtMetric online Terms of Service or a separate written agreement (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, "your”, “Customer”), and ThoughtMetric entity set forth in the Agreement (“ThoughtMetric”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by ThoughtMetric solely on behalf of the Customer. Both parties shall be referred to as the “Parties” and each, a “Party”.
Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement. By using the Services, Customer accepts this DPA and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, do not provide Personal Data to us.
In the event of any conflict between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data.
1.1 Definitions:
(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 more than 50% of the voting interests of the subject entity.
(b) “Authorized Affiliate” means any of Customer's Affiliate(s) which is explicitly permitted to use the Services pursuant to the Agreement between Customer and ThoughtMetric but has not signed its own agreement with ThoughtMetric and is not a "Customer" as defined under the Agreement.
(c) “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq., as amended by the California Privacy Rights Act of 2020.
(d) The terms, "Controller", "Member State", "Processor", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR. The terms “Business”, “Business Purpose”, “Consumer” and “Service Provider” shall have the same meaning as in the CCPA.
(e) For the purpose of clarity, within this DPA “Controller” shall also mean “Business”, and “Processor” shall also mean “Service Provider”, to the extent that the CCPA applies. In the same manner, Processor’s Sub-processor shall also refer to the concept of Service Provider.
(f) “Data Protection Laws” means all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada, Israel, Australia and the United States of America, as applicable to the Processing of Personal Data under the Agreement including (without limitation) the GDPR, the UK GDPR, the FADP, the CCPA, and the VCDPA, as applicable to the Processing of Personal Data hereunder and in effect at the time of Processor’s performance hereunder.
(g) “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
(h) “FADP” means the Swiss Federal Act on Data Protection of 19 June 1992, and as revised as of 25 September 2020, the “Revised FADP”.
(i) “GDPR” means the 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
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data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
(j) “Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person, which is processed by ThoughtMetric solely on behalf of Customer, under this DPA and the Agreement between Customer and ThoughtMetric.
(k) “Services” means the services provided to Customer by ThoughtMetric in accordance with the Agreement.
(l) “Security Documentation” means the Security Documentation applicable to the Services purchased by Customer, as updated from time to time, and made reasonably available to Customer by ThoughtMetric.
(m) “Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable Data Protection Laws, which may include any of the following: (a) social security number, tax file number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number; (c) financial, credit, genetic, biometric or health information; (d) information 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; and/or (e) account passwords in unhashed form.
(n) “Standard Contractual Clauses” means the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 or any subsequent final version thereof which shall automatically apply. To avoid doubt, Module 2 shall apply, which governs data transfers from a controller (the data exporter) to a processor (the data importer).
(o) “Sub-processor” means any third party that Processes Personal Data under the instruction or supervision of ThoughtMetric.
(p) "UK GDPR" means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
(q) VCDPA means the Virginia Consumer Data Protection Act, Code of Virginia §§ 59.1-589 through 59.1- 592.
2.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data solely on behalf of Customer, (i) Customer is the Controller of Personal Data, (ii) ThoughtMetric is the Processor of such Personal Data. The terms “Controller” and “Processor” below hereby signify Customer and ThoughtMetric, respectively.
2.2 Customer’s Processing of Personal Data. Customer, in its use of the Services, and Customer’s instructions to the Processor, shall comply with Data Protection Laws. Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Processor the Personal Data, and to authorize the Processing by Processor, and for Processor’s Processing activities on Customer’s behalf, including the pursuit of ‘business purposes’ as defined under the CCPA.
2.3 Processor’s Processing of Personal Data. When Processing on Customer’s behalf under the Agreement, Processor shall Process Personal Data for the following purposes: (i) Processing in accordance with the
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Agreement and this DPA; (ii) Processing for Customer as part of its provision of the Services; (iii) Processing to comply with Customer’s reasonable and documented instructions, where such instructions are consistent with the terms of the Agreement, regarding the manner in which the Processing shall be performed; (iv) rendering Personal Data fully anonymous, non-identifiable and non-personal in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; (v) Processing as required under the laws applicable to Processor, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Processor shall inform Customer of the legal requirement before Processing, unless such law or order prohibit such information on important grounds of public interest.
Processor shall inform Customer without undue delay if, in Processor’s opinion, an instruction for the Processing of Personal Data given by Customer infringes applicable Data Protection Laws. To the extent that Processor cannot comply with an instruction from Customer, Processor (i) shall inform Customer, providing relevant details of the issue, (ii) Processor may, without liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend Customer’s access to the Services, and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, Customer may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Customer shall pay to Processor all the amounts owed to Processor or due before the date of termination. Customer will have no further claims against Processor (including, without limitation, requesting refunds for Services) pursuant to the termination of the Agreement and the DPA as described in this paragraph.
2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Processor is the performance of the Services pursuant to the Agreement and the purposes set forth in this DPA. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of Processing) to this DPA.
2.5 CCPA Standard of Care; No Sale of Personal Information. Processor acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Processor provides to Customer under the Agreement. Processor shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. Processor certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling (as such term is defined in the CCPA) any Personal Information Processed hereunder without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from Processor under the Agreement or this DPA to qualify as “selling” such Personal Information under the CCPA.
2.6 Sensitive Data. The Parties agree that the Services are not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain ThoughtMetrice’s explicit prior written consent and enter into any additional agreements as required by ThoughtMetric.
Processor shall, to the extent legally permitted and/or required, notify Customer or refer Data Subject to Customer, if Processor receives a request from a Data Subject to exercise their rights (to the extent available to them under applicable Data Protection Laws) including, but not necessarily limited to, the of access, right to rectification, restriction of Processing, erasure, data portability, objection to the Processing, their right not to be subject to automated individual decision making, to opt-out of the sale of Personal Information, the right not to be discriminated against, etc. (each a “Data Subject Request”). Taking into account the nature of the Processing, Processor shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible and reasonable, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws.
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Processor may advise Data Subjects on available features for self-exercising their Data Subject Requests through the Services (where appropriate), and will refer Data Subject Requests received, and the Data Subjects making them, directly to the Customer for its treatment of such requests.
Processor shall ensure that its personnel and advisors engaged in the Processing of Personal Data have committed themselves to confidentiality.
5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Processor may engage Sub processors to Process Personal Data on behalf of Customer; (b) Processor’s Affiliates may be engaged as Sub-processors; and (c) Processor and Processor’s Affiliates on behalf of Processor may each engage third party Sub-processors in connection with the provision of the Services. Processor shall make available to Customer the current list of Sub-processors used by Processor to process Personal Data upon receiving an email to support@thoughtmetric.io with the subject header “Sub-processors List”. Such Sub-processor list includes the identities of those Sub-processors, the entity’s country and type of service (“Sub Processor List”). The Sub-Processor List as of the date of first use of the Services by Customer is hereby deemed authorized upon first use of the Services.
5.2 Agreements with Sub-processors. Processor or a Processor’s Affiliate on behalf of Processor has entered into a written agreement with each Sub-processor containing appropriate safeguards to the protection of Personal Data. Where Processor engages a Sub-processor for carrying out specific Processing activities on behalf of the Customer, the same or materially similar data protection obligations as set out in this DPA shall be imposed on such new Sub-processor by way of a contract, in particular obligations to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the GDPR. Where a Sub-processor fails to fulfil its data protection obligations concerning its Processing of Personal Data, Processor shall remain responsible for the performance of the Sub processor's obligations.
5.3 Notification and Objection to New Sub-processors. Processor may engage with a new Sub-processor ("New Sub-processor") to Process Personal Data on Customer's behalf and shall give notice of the planned appointment of any new Sub-processor(s) through an email from support@thoughtmetric.io Processor shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Services. Customer may object to the Processing of Personal Data by the New Sub-processor, for reasonable and explained grounds relating to the protection of Personal Data, by providing a written objection to support@thoughtmetric.io within 10 days following notification to Customer of the intended engagement with the New Sub-processor. If Customer timely sends Processor a written objection notice, the parties will make a good-faith effort to resolve Customer's objection. In the absence of a resolution, Processor will make commercially reasonable efforts to provide Customer with the same level of Services, without using the New Sub processor to Process Personal Data.
6.1 Controls for the Protection of Personal Data. Processor shall maintain industry-standard technical and organizational measures for protection of Personal Data Processed hereunder (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data, including those measures set forth in the Security Documentation), as may be amended from time to time. Upon the Customer’s reasonable request, Processor will reasonably assist Customer, at Customer’s cost and subject to the provisions of Section 11.1 below, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and the information available to Processor.
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6.2 Audits and Inspections. Upon Customer’s 14 days prior written request at reasonable intervals (no more than once every 12 months), and subject to strict confidentiality undertakings by Customer, Processor shall make available to Customer that is not a competitor of Processor (or Customer’s independent, reputable, third-party auditor that is not a competitor of Processor and not in conflict with Processor, subject to their confidentiality and non-compete undertakings) information necessary to demonstrate compliance with this DPA, and allow for and contribute to audits, including inspections, conducted by them (provided, however, that such information, audits, inspections and the results therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Processor’s prior written approval. Upon Processor's first request, Customer shall return all records or documentation in Customer's possession or control provided by Processor in the context of the audit and/or the inspection). If and to the extent that the Standard Contractual Clauses apply, nothing in this Section 6.2 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority’s or Data Subject’s rights under the Standard Contractual Clauses.
6.3 In the event of an audit or inspections as set forth above, Customer shall ensure that it (and each of its mandated auditors) will not cause (or, if it cannot avoid, minimize) any damage, injury or disruption to Processor’s premises, equipment, personnel and business while conducting such audit or inspection.
6.4 The audit rights set forth in 6.2 above, shall only apply to the extent that the Agreement does not otherwise provide Customer with audit rights that meet the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR or the UK GDPR).
Processor maintains security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data Processed by Processor on behalf of the Customer (a “Data Incident”). Processor shall make reasonable efforts to identify and take those steps as Processor deems necessary and reasonable in order to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within Processor’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or anyone who uses the Services on Customer’s behalf. Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies Processor (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Processor’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by such laws, Customer shall provide Processor with reasonable prior written notice to provide Processor with the opportunity to object to such disclosure and in any case, Customer will limit the disclosure to the minimum scope required.
Within 60 days following termination of the Agreement and subject thereto, Processor shall delete all the Personal Data it Processes solely on behalf of the Customer in the manner described in the Agreement, and Processor shall delete existing copies of such Personal Data unless Data Protection Laws require otherwise. To the extent authorized or required by applicable law, Processor may also retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or for compliance with legal obligations.
9.1 Transfers from the EEA, Switzerland and the United Kingdom to countries that offer adequate level of data protection. Personal Data may be transferred from EU Member States, the three other EEA member
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countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), Switzerland and the United Kingdom (“UK”) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, Switzerland, and/or the UK as relevant (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.
9.2 Transfers from the EEA, the UK and Switzerland to other countries. If the Processing of Personal Data by Processor includes a transfer (either directly or via onward transfer) from the EEA (“EEA Transfer”), the UK (“UK Transfer”), and/or Switzerland (“Swiss Transfer”) to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Processor for the lawful transfer of personal data (as defined in the GDPR, the UK GDPR, and/or the FADP, as relevant) outside the EEA, the UK, or Switzerland, as applicable, then: (i) the terms set forth in Part 1 of Schedule 2 (EEA Cross Border Transfers) shall apply to any such EEA Transfer; (ii) the terms set forth in Part 2 of Schedule 2 (UK Cross Border Transfers) shall apply to any such UK Transfer; (iii) the terms set forth in Part 3 of Schedule 2 (Swiss Cross Border Transfers) shall apply to any such Swiss Transfer; and (iv) the terms set forth in Part 4 of Schedule 2 (Additional Safeguards) shall apply to any such transfers.
9.3 Notwithstanding section 9.2 above, for onward transfers to Sub-processors engaged prior to the Effective Date of the Agreement, Processor may rely on the standard contractual clauses for the transfer of personal data to processors or sub-processors established in third countries, as adopted by the European Commission under Directive 95/46/EC: (i) until 27 December 2022, with respect to EEA Transfers; (ii) until 1 January 2023, with respect to Swiss Transfers; (iii) until 21 March 2024, with respect to UK Transfers.
11.1 Data Protection Impact Assessment and Prior Consultation. Upon Customer’s reasonable request, Processor shall provide Customer, at Customer’s cost, with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR or the UK GDPR (as applicable) to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Processor. Processor shall provide, at Customer’s cost, reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 11.1, to the extent required under the GDPR or the UK GDPR, as applicable.
11.2 Modifications. Each Party may by at least forty-five (45) calendar days' prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Personal Data to be made (or continue to be made) without breach of those Data Protection Laws. Pursuant to such notice: (a) The Parties shall make commercially reasonable efforts to accommodate such modification requested by Customer or that Processor believes is necessary; and (b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect
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the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein at Customer’s request. The Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’s or Processor’s notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days of such notice, then Customer or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof). Customer will have no further claims against Processor (including, without limitation, requesting refunds for the Services) pursuant to the termination of the Agreement and the DPA as described in this Section.
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Nature and Purpose of Processing
1. Providing the Services to Customer;
2. Performing the Agreement, this DPA and/or other contracts executed by the Parties;
3. Acting upon Customer’s instructions, where such instructions are consistent with the terms of the Agreement;
4. Complying with applicable laws and regulations.
Duration of Processing
Subject to any section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Processor will Process Personal Data pursuant to the DPA and Agreement for the duration of the Agreement, unless otherwise agreed upon in writing.
Type of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion.
Categories of Data Subjects
Customer may submit Personal Data to the Services which may include, but is not limited to, Personal Data relating to the following categories of Data Subjects: Customers’ visitors and shoppers who interact with the Customer online and/or purchase products and/or services from Customer online.
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STANDARD CONTRACTUAL CLAUSES
1. The parties agree that the terms of the Standard Contractual Clauses are hereby incorporated by reference and shall apply to an EEA Transfer.
2. Module Two (Controller to Processor) of the Standard Contractual Clauses shall apply where the EEA Transfer is effectuated by Customer as the data controller of the Personal Data and ThoughtMetric is the data processor of the Personal Data.
3. Clause 7 of the Standard Contractual Clauses (Docking Clause) shall not apply.
4. Option 2: GENERAL WRITTEN AUTHORISATION in Clause 9 of the Standard Contractual Clauses shall apply, and the method for appointing and time period for prior notice of Sub-processor changes shall be as set forth in Section 5.3 of the DPA.
5. In Clause 11 of the Standard Contractual Clauses, the optional language will not apply.
6. In Clause 17 of the Standard Contractual Clauses, Option 1 shall apply, and the Parties agree that the Standard Contractual Clauses shall be governed by the laws of the Republic of Ireland.
7. In Clause 18(b) of the Standard Contractual Clauses, disputes will be resolved before the courts of the Republic of Ireland.
8. Annex I.A of the Standard Contractual Clauses shall be completed as follows:
Data Exporter: Customer.
Contact details: As detailed in the Agreement.
Data Exporter Role:
Module Two: The Data Exporter is a data controller.
Signature and Date: By entering into the Agreement and DPA, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Data Importer: ThoughtMetric
Contact details: As detailed in the Agreement.
Data Importer Role:
Module Two: The Data Importer is a data processor.
Signature and Date: By entering into the Agreement and DPA, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
9. Annex I.B of the Standard Contractual Clauses shall be completed as follows:
The categories of personal data and data subjects are described in Schedule 1 of the DPA.
The Parties do not intend for Sensitive Data to be transferred.
The frequency of the transfer is a continuous basis for the duration of the Agreement.
The nature and purpose of the Processing is described in Schedule 1 of the DPA.
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The period for which the Personal Data will be retained is for the duration of the Agreement, unless agreed otherwise in the Agreement and/or the DPA.
In relation to transfers to Sub-processors, the subject matter, nature, and duration of the processing is set forth in Schedule 1 of the DPA.
10. Annex I.C of the Standard Contractual Clauses shall be completed as follows:
The competent supervisory authority in accordance with Clause 13 is the supervisory authority in the Member State stipulated in Section 7 above.
11. The Security Documentation referred to in the DPA serves as Annex II of the Standard Contractual Clauses.
12. To the extent there is any conflict between the Standard Contractual Clauses and any other terms in this DPA or the Agreement, the provisions of the Standard Contractual Clauses will prevail.
Table 1: The Parties: as detailed in Section 9 of Part 1 of this Schedule 1.
Table 2: Selected SCCs, Modules and Selected Clauses: as detailed in Part 1 of this Schedule 1.
Table 3: Appendix Information: means the information which must be provided for the selected modules as set out in the Appendix of the Standard Contractual Clauses (other than the Parties), and which is set out in Part 1 of this Schedule 1.
The Parties agree that the Standard Contractual Clauses as detailed in Part 1 of this Schedule 2, shall be adjusted as set out below where the FADP applies to Swiss Transfers:
1. References to the Standard Contractual Clauses mean the Standard Contractual Clauses as amended by this Part 3;
2. The Swiss Federal Data Protection and Information Commissioner shall be the sole Supervisory Authority for Swiss Transfers exclusively subject to the FADP;
3. The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the Standard Contractual Clauses shall be interpreted to include the FADP with respect to Swiss Transfers;
4. References to Regulation (EU) 2018/1725 are removed;
5. Swiss Transfers subject to both the FADP and the GDPR, shall be dealt with by the EU Supervisory Authority named in Annex I.C to Part 1 of this Schedule 2;
6. References to the “Union”, “EU” and “EU Member State” shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of exercising their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Standard Contractual Clauses;
7. Where Swiss Transfers are exclusively subject to the FADP, all references to the GDPR in the Standard Contractual Clauses are to be understood to be references to the FADP;
8. Where Swiss Transfers are subject to both the FADP and the GDPR, all references to the GDPR in the Standard Contractual Clauses are to be understood to be references to the FADP insofar as the Swiss Transfer is subject to the FADP;
9. The Standard Contractual Clauses as amended by this Part 3 also protect the Personal Data of legal entities until the entry into force of the Revised FADP.
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1. In the event of an EEA Transfer, a UK Transfer, or a Swiss Transfer, the Parties agree to supplement these with the following safeguards and representations, where appropriate:
a) The data importer as defined in Part.1 of this Schedule 2 shall have in place and maintain in accordance with good industry practice measures to protect the Personal Data from interception (including in transit from the data exporter as defined in Part.1 of this Schedule 2 to the data importer and between different systems and services). This includes having in place and maintaining network protection intended to deny attackers the ability to intercept data and encryption of Personal Data whilst in transit and at rest intended to deny attackers the ability to read data.
b) The data importer will make commercially reasonable efforts to resist, subject to applicable laws, any request for bulk surveillance relating to the Personal Data protected under GDPR or the UK GDPR, or the AFDP, including under section 702 of the United States Foreign Intelligence Surveillance Act (“FISA”);
c) If the data importer becomes aware that any government authority (including law enforcement) wishes to obtain access to or a copy of some or all of the Personal Data, whether on a voluntary or a mandatory basis, then unless legally prohibited or under a mandatory legal compulsion that requires otherwise:
i. The Data Importer will notify the Data Exporter immediately after first becoming aware of such demand for access to Personal Data and provide the Data Exporter with all relevant details of the same, unless and to the extent legally prohibited to do so;
ii. The data importer shall inform the relevant government authority that the Data Importer is a processor of the Personal Data and that the data exporter has not authorized the Data Importer to disclose the Personal Data to the government authority, and inform the relevant government authority that any and all requests or demands for access to the Personal Data should therefore be notified to or served upon the Controller in writing;
iii. The data importer will use commercially reasonable legal mechanisms to challenge any such demand for access to Personal Data which is under the data importer’s control. Notwithstanding the above, (a) the data exporter acknowledges that such challenge may not always be reasonable or possible in light of the nature, scope, context and purposes of the intended government authority access, and (b) if, taking into account the nature, scope, context and purposes of the intended government authority access to Personal Data, the data importer has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual or entity, this subsection (c)(II) shall not apply. In such event, the data importer shall notify the data exporter, as soon as possible, following the access by the government authority, and provide the data exporter with relevant details of the same, unless and to the extent legally prohibited to do so.
2. Once in every 12-month period, the data importer will inform the data exporter, at the data exporter’s written request, of the types of binding legal demands for Personal Data it has received and solely to the extent such demands have been received, including national security orders and directives, which shall encompass any process issued under section 702 of FISA.
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