Data Processing Addendum

Smartcar's Data Processing Addendum

DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) is incorporated into, and is subject to the terms and conditions of, the Developer Terms of Service, the Developer API Platform Agreement, or other written or electronic agreement (“Agreement”) between Smartcar, Inc. (“Smartcar”) and the entity identified as “Developer” in the Agreement (“Customer”). This DPA shall apply where Smartcar Processes Customer Personal Data (as defined below) on behalf of Customer in connection with providing the Smartcar Services to Customer and solely where such Processing is subject to the Data Protection Laws (as defined below). This DPA shall be effective for the term of the Agreement.

1. Definitions

• ~1.1. For the purposes of this DPA:
• ~~1.1.1. "Controller" means the entity which determines the purposes and means of the Processing of Personal Data, including as applicable a "Business" as defined under the CCPA;
• ~~1.1.2. "Customer Personal Data" means the Personal Data described under Schedule 1 to this DPA;
• ~~1.1.3. "CCPA" means the California Consumer Privacy Act and its implementing regulations;
• ~~1.1.4. "Data Protection Laws" means all applicable laws relating to data protection and privacy including without limitation, the CCPA, the GDPR and member state laws implementing the GDPR, the United Kingdom’s Data Protection Act 2018, the Swiss Federal Act on Data Protection and applicable privacy laws of any other country, each as amended, repealed, consolidated or replaced from time to time;
• ~~1.1.5. "GDPR" means the General Data Protection 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 (“EU GDPR”) and the EU GDPR in such form as incorporated into the laws of the United Kingdom (“UK GDPR”), each as amended or replaced from time to time;
• ~~1.1.6. "Personal Data", "Data Subject", "Personal Data Breach" and "Processing" will each have the meaning given to them in the Data Protection Laws. The term “Personal Data” includes “personal information,” “personally identifiable information,” and equivalent terms as such terms may be defined by the Data Protection Laws. The term “Personal Data Breach” includes equivalent terms as defined by the Data Protection Laws;
• ~~1.1.7. "Processor" means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined under the CCPA; and
• ~~1.1.8. "Standard Contractual Clauses" means the Standard Contractual Clauses attached as Schedule 2, approved with Commission Implementing Decision (EU) 2021/914 of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as amended, supplemented, updated or replaced from time to time.
• ~1.2. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

2. Processing of Customer Personal Data

• ~2.1. Customer is a Controller or Processor, as applicable, of Customer Personal Data and Smartcar is the Processor of that data. Smartcar will only Process Customer Personal Data as a Processor on behalf of and in accordance with Customer’s prior written instructions. Smartcar is hereby instructed to Process Customer Personal Data to the extent necessary to enable Smartcar to provide the Smartcar Services in accordance with the Agreement . If Customer is a Processor, Customer warrants that its instructions and actions with respect to Customer Personal Data, including its engagement of Smartcar pursuant to the Agreement and this DPA, have been authorized by the relevant Controller. Smartcar will accept instructions solely from the Customer, unless otherwise agreed in writing by the parties. A description of Processing is set forth in Schedule 1. If applicable laws preclude Smartcar from complying with Customer’s instructions, Smartcar will inform Customer of its inability to comply with the instructions, to the extent permitted by law.
• ~2.2. To the extent Smartcar’s Processing of Customer Personal Data is subject to the CCPA, Smartcar shall not (1) retain, use, or disclose Customer Personal Data other than as provided for in the Agreement or as otherwise permitted by the CCPA; or (2) sell Customer Personal Data.
• ~2.3. Each of Customer and Smartcar will comply with their respective obligations under the Data Protection Laws. Customer warrants that it has obtained any and all legally-required consents from Data Subjects and/or provided any legally-required notices, and, to the extent applicable, has legitimate grounds under the Data Protection Laws to Process the Customer Personal Data.

3. Cross-Border Transfers of Personal Data

• ~3.1. The parties hereby agree that, where Customer is a Controller and Smartcar is a Processor, Module Two (Controller to Processor Module) of the Standard Contractual Clauses and all other sections of the Standard Contractual Clauses having general application (hereinafter, “C2P SCCs”) shall apply to the transfer of Customer Personal Data originating from the EU, UK, and Switzerland to Smartcar in the United States and the parties agree to comply with the C2P SCCs, which are hereby attached to this DPA at Schedule 2. Where Customer is a Processor and Smartcar is a sub-Processor to Customer, Module Three (Processor to Processor Module) of the Standard Contractual Clauses and all other sections of the Standard Contractual Clauses having general application (hereinafter, “P2P SCCs”) shall apply to such transfers and the parties agree to comply with the P2P SCCs, which are hereby attached to this DPA at Schedule 2. By entering into this DPA, the parties agree to be bound by the Standard Contractual Clauses.
• ~3.2. The parties agree that the UK Addendum to the Standard Contractual Clauses as set out in Schedule 3 hereto (“UK Addendum”) shall apply to the transfer of Personal Data originating from the UK, and by entering into this DPA, the parties agree to be bound by the UK Addendum. The parties shall work together, in good faith, to enter into any updated version of the UK Addendum as issued by the Information Commissioner’s Office from time to time or negotiate an alternative solution to enable transfers of Personal Data in compliance with the Data Protection Laws.
• ~3.3. Insofar as the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection, the following provisions apply: (i) the Federal Data Protection and Information Commissioner (FDPIC) will be the competent supervisory authority under Clause 13 of the C2P SCCs or the P2P SCCs, as applicable; (ii) the parties agree to abide by the EU GDPR standard in relation to all Processing of Customer Personal Data that is governed by the Swiss Federal Act on Data Protection; (iii) the term ‘Member State’ in the C2P SCCs and the P2P SCCs will not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the C2P SCCs and the P2P SCCs; and (iv) references to the ‘GDPR’ in the C2P SCCs and the P2P SCCs will be understood as references to the Swiss Federal Act on Data Protection insofar as the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection.
• ~3.4. The C2P SCCs and the P2P SCCs shall automatically terminate if the European Data Protection Board or other competent authorities determine that Standard Contractual Clauses are not applicable to the transfers of Customer Personal Data to the Smartcar.

4. Confidentiality and Security

• ~4.1. Smartcar will require Smartcar’s personnel who access the Customer Personal Data to commit to protect the confidentiality of the data.
• ~4.2. Smartcar will implement appropriate technical and organizational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data (described under Annex II to the Standard Contractual Clauses).
• ~4.3. Smartcar will provide Customer with reasonable assistance as necessary for the fulfilment of Customer’s obligation to implement security measures to protect Customer Personal Data under Article 32 of the GDPR.

5. Sub-Processing

• ~5.1. Customer agrees that Smartcar may engage sub-Processors to process Customer Personal Data on Customer's behalf. The sub-processors currently engaged by Smartcar and authorized by Customer are listed in Schedule 4. Smartcar will inform Customer of any intended changes concerning the addition or replacement of any sub-Processors and Customer will have an opportunity to object to such changes on reasonable grounds within seven (7) business days after being notified. If the parties are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party.
• ~5.2. Smartcar will impose on the sub-Processors substantially the same obligations that apply to Smartcar under this DPA. Where any of its sub-Processors fails to fulfil its data protection obligations, Smartcar will be liable to Customer for the performance of its sub-Processors’ obligations.
• ~5.3. The parties agree that the copies of the Sub-processor agreements that must be provided by Smartcar to Customer pursuant to Clause 9(c) of the Standard Contractual Clauses, if applicable, may have commercial information or clauses unrelated to the Standard Contractual Clauses, removed by Smartcar beforehand; and, that such copies will be provided by Smartcar, in a manner to be determined in its discretion, only upon Customer’s written request.

6. Data Subject Rights

• ~6.1. Smartcar will, at Customer’s request and subject to Customer paying all of Smartcar’s fees at prevailing rates, and all expenses, provide Customer with assistance necessary for the fulfilment of Customer’s obligation to respond to requests for the exercise of Data Subjects’ rights. Smartcar shall not respond to such requests without Customer’s prior written consent and written instructions. Customer shall be solely responsible for responding to such requests.

7. Personal Data Breaches

• ~7.1. Smartcar will notify Customer without undue delay after it becomes aware of any Personal Data Breach affecting any Customer Personal Data. At Customer’s request and subject to Customer paying all of Smartcar’s fees at prevailing rates, and all expenses, Smartcar will promptly provide the Customer with all reasonable assistance necessary to enable Customer to notify relevant security breaches to the competent data protection authorities and/or affected Data Subjects, if Customer is required to do so under the GDPR. Customer is solely responsible for complying with Personal Data Breach notification requirements applicable to Customer and fulfilling any third-party notification obligations related to any Personal Data Breach.

8. Data Protection Impact Assessment; Prior Consultation

• ~8.1. Smartcar will, at Customer’s request and subject to Customer paying all of Smartcar’s fees at prevailing rates, and all expenses, provide Customer with reasonable assistance to facilitate conducting data protection impact assessments and consultation with data protection authorities, if Customer is required to engage in such activities under the GDPR, and solely to the extent that such assistance is necessary and relates to the Processing by the Smartcar of the Customer Personal Data, taking into account the nature of the Processing and the information available to the Smartcar.

9. Return or Deletion of Customer Personal Data

• ~9.1. On termination of the Agreement, Customer instructs Smartcar to delete all Customer Personal Data from Smartcar’s systems in accordance with applicable law. Smartcar will, after a recovery period of up to 30 days following such termination, comply with this instruction as soon as reasonably practicable and within 90 days, unless further storage of the data is required by applicable law of the European Union, its Member States or the United Kingdom. The parties agree that certification of deletion of Customer Personal Data as described in Clause 8.5 of the Standard Contractual Clauses, if applicable, shall be provided only upon Customer’s request. Customer is solely responsible for exporting, before termination of the Agreement, any Customer Personal Data it wishes to retain.

10. Information

• ~10.1. Smartcar will, at Customer’s request and subject to Customer paying all of Smartcar’s fees at prevailing rates, and all expenses, provide Customer with all information necessary to enable Customer to demonstrate compliance with its obligations under the GDPR, and allow for and contribute to audits, including inspections, conducted by Customer or an auditor mandated by Customer, to the extent that such information is within Smartcar’s control and Smartcar is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party, and provided that such audits shall be carried out with reasonable notice during regular business hours not more often than once per year. The parties agree that the audits described in Clause 8.9 and Clause 13(d) of the Standard Contractual Clauses, if applicable, shall be performed in accordance with this Section 10. Smartcar will immediately inform Customer if, in its opinion, an instruction from Customer infringes the Data Protection Laws.

11. Liability

• ~11.1. Each party’s liability towards the other party under or in connection with this DPA will be limited in accordance with the provisions of the Agreement.
• ~11.2. Customer acknowledges that Smartcar is reliant on Customer for direction as to the extent to which Smartcar is entitled to Process Customer Personal Data on behalf of Customer in performance of the Smartcar Services. Consequently Smartcar will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by the Smartcar, to the extent that such action or omission resulted from Customer’s instructions or from Customer’s failure to comply with its obligations under the Data Protection Laws.

12. General Provisions

• ~12.1. With regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and the Agreement, the provisions of this DPA shall prevail.

SCHEDULE 1

Details of Processing

• ~1. Categories of Data Subjects: Customer’s End Users.
• ~2. Types of Personal Data: Information associated with the End User’s vehicle and the use thereof, which is transmitted to or through the Smartcar Services.
• ~3. Subject-Matter and Nature of the Processing: The subject-matter of Processing of Customer Personal Data by Smartcar is the provision of the Services to the Customer. Customer Personal Data will be subject to those Processing activities which Smartcar needs to perform in order to provide the Services pursuant to the Agreement.
• ~4. Purpose of the Processing: Customer Personal Data will be Processed by Smartcar for purposes of providing the Services set out into the Agreement.
• ~5. Duration of the Processing: Customer Personal Data will be Processed for the duration of the Agreement, subject to Section 9 of the DPA.

SCHEDULE 2

Standard Contractual Clauses (processors)

The parties agree that with respect to the implementation of the Standard Contractual Clauses under the DPA, either one or both of Module Two: Controller to Processor of the Standard Contractual Clauses (“Module Two,” otherwise defined in the DPA as “C2P SCCs”) and Module Three: Processor to Processor of the Standard Contractual Clauses (“Module Three,” otherwise defined in the DPA as “P2P SCCs”) shall apply, and both Module Two and Module Three are referenced herein. To the extent Module Two and Module Three differ, those differences are highlighted below. Where Module Two and Module Three do not differ, the identical provisions are referenced only once.

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. For Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); For Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
• ~~iii. For Module Two: Clause 9(a), (c), (d) and (e); For Module Three: Clause 9(a), (c), (d) and (e);
• ~~iv. Clause 12(a), (d) and (f);
• ~~v. Clause 13;
• ~~vi. Clause 15.1(c), (d) and (e);
• ~~vii. Clause 16(e);
• ~~viii. Clause 18(a) and (b).
• ~(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

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

• ~(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
• ~(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
• ~(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II - OBLIGATIONS OF THE PARTIES

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.

FOR 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.

FOR 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 benefiting 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
• ~(v) 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

FOR MODULE TWO: TRANSFER CONTROLLER TO PROCESSOR

• ~(a) 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 fifteen (15) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
• ~(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
• ~(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
• ~(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
• ~(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

FOR MODULE THREE: TRANSFER PROCESSOR TO PROCESSOR

• ~(a) 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 fifteen (15) days in advance, 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

FOR 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.

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

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

Clause 14‍

Local laws and practices affecting compliance with the Clauses

• ~(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
• ~(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
• ~~(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
• ~~(ii)the laws and practices of the third country of destination - including those requiring the disclosure of data to public authorities or authorising access by such authorities - relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
• ~~(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 [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

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.]
• ~(a) 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.
• ~(b) 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.]
• ~(c) 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.
• ~(d) 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

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

• ~(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.

APPENDIX

Annex I

To the Standard Contractual Clauses

A. LIST OF PARTIES

Data exporter(s): Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union

Data importer(s): Identity and contact details of the data importer(s), including any contact person with responsibility for data protection

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred:
The categories of data subjects described in Schedule 1 to the DPA to which these Clauses are attached.

Categories of personal data transferred:
The categories of personal data described in Schedule 1 to the DPA to which these Clauses are attached.

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:
None.

The frequency of the transfer (eg. whether the data is transferred on a one-off or continuous basis):
Customer Personal Data will be Processed for the duration of the Agreement, subject to Section 9 of the DPA.

Nature of the processing:
As described in Schedule 1 to the DPA to which these Clauses are attached.

Purpose(s) of the data transfer and further processing:
As described in Schedule 1 to the DPA to which these Clauses are attached.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
The duration specified in Clause 8.5 of the C2P SCCs and the P2P SCCs and in the Agreement.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
A list of Smartcar’s sub-Processors and the nature of the Processing activities can be found in Schedule 4 to the DPA.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13:
The competent supervisory authority communicated by Customer to Smartcar.

Annex II

To the Standard Contractual Clauses

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Description of the technical and organisational measures implemented by the 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

The technical and organisational measures implemented by the data importer are described at https://smartcar.com/data-security/.

SCHEDULE 3

UK ADDENDUM TO THE STANDARD CONTRACTUAL CLAUSES

Date of this Addendum:

• ~1. This UK Addendum (“Addendum”) is effective for the term of the Agreement.

Background:

• ~2. The Information Commissioner considers this Addendum provides appropriate safeguards for the purposes of transfers of personal data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and, with respect to data transfers from controllers to processors and/or processors to processors.

Interpretation of this Addendum:

• ~3. Where this Addendum uses terms that are defined in the Annex (as defined below) those terms shall have the same meaning as in the Annex. In addition, the following terms have the following meanings:

• ~4. This Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 GDPR.
• ~5. This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
• ~6. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re- enacted and/or replaced after this Addendum has been entered into.

Hierarchy:

• ~7. In the event of a conflict or inconsistency between this Addendum and the provisions of the Clauses or other related agreements between the Parties, existing at the time this Addendum is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.

Incorporation of the Clauses:

• ~8. This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so they operate:
• ~~(a) for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer; and
• ~~(b) to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR.
• ~9. The amendments required by Section 8 above, include (without limitation):
• ~~(a) References to the “Clauses” means this Addendum as it incorporates the Clauses.
• ~~(b) Clause 6 Description of the transfer(s) is replaced with:
  “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”
• ~~(c) References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.
• ~~(d) References to Regulation (EU) 2018/1725 are removed.
• ~~(e) References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”.
• ~~(f) Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner.
• ~~(g) Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
• ~~(h) Clause 18 is replaced to state:
  “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
• ~~(i) The footnotes to the Clauses do not form part of the Addendum.

Amendments to this Addendum:

• ~10. The Parties may agree to change Clause 17 and/or 18 to refer to the laws and/or courts of Scotland or Northern Ireland.
• ~11. The Parties may amend this Addendum provided it maintains the appropriate safeguards required by Art 46 UK GDPR for the relevant transfer by incorporating the Clauses and making changes to them in accordance with Section 7 above.

SCHEDULE 4

Authorized Sub-Processors