By executing any agreement (the “Agreement”) for products or services (collectively, the “Services”) to be provided by FORWARD THINKING SYSTEMS LLC (“FTS”), you (“Customer”) agrees to be bound by the terms of this Data Processing Addendum (this “DPA”). This DPA reflects the Parties’ agreement with respect to the Processing of Personal Data pursuant to or in connection with the Agreement and any other agreements between Customer and FTS.
Customer enters into this DPA on behalf of itself and, to the extent required under Applicable Laws (as defined herein), in the name and on behalf of its Authorized Affiliates (as defined herein), if and to the extent FTS processes Personal Data for which such Authorized Affiliates that qualify as the Controller (as defined herein). For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.
All capitalized terms not defined herein shall have the meaning set forth in the Agreement. The following exhibits attached to this DPA are incorporated herein by reference as if fully set forth herein: Details of the Processing, attached hereto as EXHIBIT A; EU SCCs, attached hereto as EXHIBIT B; and List of Sub-Processors, attached hereto as EXHIBIT C.
DEFINITIONS
“Applicable Laws” means all laws and regulations, including, without limitation, laws and regulations of the European Union, the European Economic Area and their member states, the United Kingdom, and the United States including, without limitation (the “Data Protection Laws”): (i) the EU General Data Protection Regulation (EU 2016/679) (the “EU GDPR”), its incorporation into the laws of England and Wales, Scotland, and Northern Ireland by virtue of the UK European Union (Withdrawal) Act 2018 (the “UK GDPR”); (ii) the Swiss Federal Act on Data Protection (“FADP”); (iii) United States federal and/or state data protection or privacy statutes, including but not limited to the California Consumer Privacy Act of 2018 as amended by The California Privacy Rights Act of 2020 (together with its implementing regulations, the “CPRA”); and/or (iv) any other applicable national legislation in the European Economic Area or United Kingdom which supplements the EU GDPR or UK GDPR (as applicable), and/or the applicable data privacy, and/or data protection laws in the U.S.A., Canada, and Mexico; in each case, as may be amended, superseded or replaced from time to time.
“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.
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Applicable Laws of the European Union, the European Economic Area and/or their member states, and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and FTS, but has not signed its own agreement with FTS and is not a “Customer” as defined under the Agreement.
“Controller” means the entity that determines the purposes and means of the Processing of Personal Data.
“Customer Data” means any Personal Data subject to Data Protection Laws contained in the data of a Customer and is Processed by FTS on Customer’s behalf pursuant to the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“EU SCCs” means the Standard Contractual Clauses annexed to the EU Commission’s Implementing Decision 2021/914 of 4 June 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.
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under Applicable Laws), where for each (i) or (ii), such data is Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Sub-processor” means any person or third-party appointed by FTS to Process Personal Data on behalf of FTS in connection with the Agreement.
“Supervisory Authority” means a government or regulatory authority responsible for administering, overseeing compliance with, and/or enforcing Data Protection Laws.
PROCESSING OF PERSONAL DATA
Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, and FTS is the Processor. FTS may engage Sub-processors, from time to time, pursuant to the requirements set forth in Section 5 below.
Processing of Personal Data. FTS will Process Personal Data in accordance with the requirements of Applicable Laws, the Agreement, any Customer instructions and this DPA. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Applicable Laws. Customer shall not unreasonably withhold, delay, or condition its agreement to any change to this DPA requested by FTS in order to ensure the Services and FTS (and each Sub-processor) can comply with Applicable Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. FTS shall not be responsible for obtaining consent, authorization, approval, or agreement as may be required under Applicable Laws or for providing notice with respect to Customer Data, in order to enable FTS to receive and Process the Customer Data in accordance with the Agreement. Where FTS believes that a Customer instruction would be in breach of an Applicable Law, or if FTS believes it can no longer meet its obligations under the CPRA, FTS shall notify Customer. FTS shall be entitled to suspect performing its obligations under such instruction until Customer confirms or modifies the instruction.
FTS’s Processing of Personal Data. FTS shall only Process Personal Data for the purpose of providing, supporting, and improving FTS’s Services (including to perform usage analytics, provide insights, and other reporting), and on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Authorized Users in their use of the Services; (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement; and (iv) to comply with Applicable Laws relevant to FTS.
Details of the Processing. The subject matter of Processing of Personal Data by FTS is the performance of the Services pursuant to the Agreement. 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 EXHIBIT A to this DPA. FTS hereby notifies Customer that processing performed by FTS’s software platform will include storage of personal data and user usage analytics. The Agreement is amended to include this Processing.
RIGHTS OF DATA SUBJECTS
FTS shall, to the extent legally and technically permitted, promptly notify Customer if FTS receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure, data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Based upon the nature of the Processing, FTS shall not respond to Data Subject requests directly. FTS will use commercially reasonable efforts to assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Applicable Laws. In addition, FTS shall, upon Customer’s request, provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent FTS is legally permitted to do so and the response to such Data Subject Request is required under Applicable Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from FTS’s provision of such assistance set forth in this Section 3.
PERSONNEL
Confidentiality. FTS shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements.
Reliability. FTS shall take commercially reasonable steps to ensure the reliability of any FTS personnel engaged in the Processing of Personal Data.
Limitation of Access. FTS shall ensure that FTS’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
Data Protection Officer. FTS does not appoint a Data Protection Officer. If there are any questions related to the Processing of Personal Data, Customer can contact FTS at [email protected].
SUB-PROCESSORS
Appointment of Sub-processors. Customer acknowledges and agrees that FTS may engage third-party Sub-processors in connection with the provision of the Services. FTS has or will enter into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
List of Current Sub-processors and Notification of New Sub-processors. Attached as EXHIBIT C is the current list of Sub-processors for the Services. FTS shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services. Such authorization will not be unreasonably withheld. The list of Sub-processors will be updated on FTS’s privacy policy viewable at https://www.ftsgps.com/legal/website-privacy-policy/.
Objection Right for New Sub-processors. Customer may object to FTS’s use of a new Sub-processor by notifying FTS promptly in writing within ten (10) business days after receipt of FTS’s notice in accordance with Section 5.2. Customer’s objection shall be in writing and include Customer’s specific reasons for its objection and options to mitigate, if any. In the event Customer objects to a new Sub-processor, FTS will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If FTS is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Agreement with respect only to those Services which cannot be provided by FTS without the use of the objected-to new Sub-processor by providing written notice to FTS. FTS will refund Customer any prepaid fees covering the remainder of the term of such Agreement following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer. If Customer does not object within such period the respective Sub-processor may be commissioned to Process Customer Data. Where a material reason for an objection to a Sub-processor exists and is provided to FTS in writing, failing an amicable resolution if each party is acting reasonably and in good faith), Customers subject to the EU and UK GDPR may terminate the Agreement in relation only to the impacted features or functions of the Services.
Liability. FTS shall be liable for the acts and omissions of its Sub-processors to the same extent FTS would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
SECURITY
Controls for the Protection of Customer Data. FTS shall maintain appropriate technical, administrative, and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data.
CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
FTS shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by FTS or its Sub- processors (a “Customer Data Incident”). FTS shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as FTS deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within FTS’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Authorized Users.
DATA CONTROLLER’S OBLIGATIONS
As Controller, Customer warrants that: (i) the legislation applicable to it does not prevent FTS from fulfilling the instructions received from the Data Controller(s) and performing FTS’s obligations under this DPA and the Agreement; and (ii) it has complied and continues to comply with the Applicable Laws, in particular that it has obtained any necessary consents or given any necessary notices, and otherwise has a legitimate ground to disclose the data to FTS and enable the Processing of the Personal Data by FTS as set out in this DPA and as envisaged by any services agreement in place between the Parties.
Customer also warrants that it maintains accurate and up to date records of legal basis for processing including relevant consent flows. If Customer is relying on “legitimate interest” under Article 6(1)(f) of the GDPR, it warrants that it has balanced its interests against the fundamental rights of the data subject and keeps records of this process.
Customer agrees that it will jointly and severally together with any other Data Controller, indemnify and hold harmless FTS on demand from and against all claims, liabilities, costs, expenses, loss or damage (including, without limitation, consequential losses, loss of profit and loss of reputation and all interest, penalties and legal and other professional costs and expenses) incurred by FTS and each other FTS arising directly or indirectly from a breach of this Clause.
RETURN AND DELETION OF CUSTOMER DATA
FTS shall return Customer Data to Customer and, to the extent allowed by Applicable Laws, delete Customer Data in accordance with FTS’s policies and procedures in a reasonable time following the end of the Agreement.
AUTHORIZED AFFILIATES
Contractual Relationship. The Parties acknowledge and agree that, by executing this DPA, the Customer enters into this DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between FTS and each such Authorized Affiliate subject to the provisions of this DPA. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the DPA and the Agreement and any violation of the terms and conditions of the DPA and the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.
Notice. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with FTS under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
Rights of Authorized Affiliates. Except where Applicable Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against FTS directly by itself, the Parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together.
LIMITATIONS OF LIABILITY
Each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and FTS, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any other reference in the Agreement limiting FTS’s liability under the Agreement, and any reference in the Agreement such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
For the avoidance of doubt, FTS’s total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this DPA, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.
DATA TRANSFERS
Transfers. FTS may transfer Customer Data to any country or territory, as reasonably necessary for the provision of the Products, consistent with this Addendum. To the extent the provision of Products under the Agreement involves a transfer of Customer Data that is protected by Data Protection Laws applicable to the European Union, the United Kingdom, and/or Switzerland, and such Customer Data is transferred to a country that is not recognized by the European Commission (or, in the case of transfers from Switzerland, the competent authority for Switzerland, and transfers from the UK, the competent United Kingdom regulatory authority or governmental body for the United Kingdom) as providing an adequate level of protection under applicable Data Protection Laws, FTS and Customer agree to abide by and Process Customer Data in compliance with the transfer mechanisms specified below.
Data Protection Impact Assessment and Supervisory Authority. Upon Customer’s request, FTS shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR 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 FTS. Where appropriate and/or legally required, FTS shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this DPA, to the extent required under the GDPR.
Transfer Mechanism for Data Transfers. Any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Applicable Laws of the foregoing territories, shall, to the extent such transfers are subject to such Applicable Laws, be made pursuant to the EU SCCs set forth in EXHIBIT B to this DPA.
Records, Information, and Audits. FTS shall (i) maintain, in accordance with Article 30 of the EU GDPR, written records of all categories of processing activities carried out on behalf of Customer; and (ii) to the extent required under Article 28 of the GDPR, make available to Customer or the Supervisory Authority such information as is reasonably necessary to demonstrate FTS’s compliance with the obligations of a Processor under the GDPR.
In a case of such information request, audit, and/or inspection request by Customer, Customer:
provides FTS reasonable prior notice of such information request, audit, and/or inspection being required by Customer;
ensures that all information obtained or generated by Customer or its auditor(s) in connection with such information requests, inspections, and audits is kept strictly confidential (save for disclosure to the Supervisory Authority or as otherwise required by Applicable Law);
ensures that the audit or inspection is undertaken during normal business hours, with minimal disruption to FTS’s business, the Sub-processors’ business and the business of other customers of FTS;
reimburses FTS for reasonable costs undertaken by FTS in assisting with the provision of information and allowing for and contributing to inspections and audits; and
undertakes no more than one such audit or inspection during any twelve (12) month period.
If a Supervisory Authority requires an audit of the Personal Data Processing facilities in order to ascertain or monitor FTS’s compliance with Applicable Laws, FTS will cooperate with such audit.
Transfers from the EEA. With regards to transfers of Customer Data protected by the EU GDPR, Module Two of the EU SCCs attached hereto (including the annexes attached) shall apply as follows (unless the Customer is a Processor, in which case Module Three applies):
The optional docking clause under Clause 7 of the EU SCCs shall not apply.
For the purposes of clause 8.1(a) of the EU SCCs, the following is deemed to be an instruction by the Customer for FTS and its Sub-processors to Process Personal Data: (a) Processing in accordance with the Agreement; (b) Processing initiated by the Customer in their use of the Products; and (c) Processing to comply with other reasonable instructions as provided by Customer from time to time (e.g., via email) where such instructions are consistent with the terms of the Agreement.
The Customer’s right of audit under clause 8.9 of the EU SCCs may be exercised as specified in Section 9 of this Addendum.
Pursuant to clause 9(a) of the EU SCCs, FTS’s Affiliates may be retained as Sub-processors, and FTS and its Affiliates respectively are generally authorized by Customer and may engage third-party Sub-processors in connection with delivering the Products. FTS will make available its then-current list of Sub-processors available to Customer in accordance with Section 5 of this Addendum.
Pursuant to clause 9(a) of the EU SCCs, FTS may engage new Sub-processors as described in Sections 5.2 of this Addendum. The parties agree that copies of Sub-processor agreements that FTS must provide to Customer pursuant to clause 9(c) of the EU SCCs may have all commercial information, or clauses unrelated to the EU SCCs or their equivalent, removed by FTS beforehand; and, that such copies will be provided by FTS, in a manner to be determined in its discretion, only upon request by Customer. Any such agreements provided to the Customer in accordance with this Section 10.1.1 of this Addendum shall be considered the Confidential Information of FTS.
For purposes of clauses 8.5 and 16(d) of the EU SCCs, FTS will comply with its obligations to return or destroy all Personal Data as specified in Section 11 of this Addendum.
The optional redress language under Clause 11(a) of the EU SCCs will not apply.
In Clause 17, Option 1 will apply, and the EU SCCs will be governed by the laws of the Republic of Ireland.
In Clause 18(b), the choice of forum and jurisdiction for any disputes shall be resolved before the courts of the Republic of Ireland.
Annex I shall be completed with the information set out in Annex I to this DPA.
Annex II shall be completed with the information set out in Annex II to this DPA.
Annex III shall be completed with the information set out in Annex III to this DPA.
Transfers from Switzerland. With regards to transfers of FTS Data protected by the Swiss FADP, the EU SCCs shall apply as specified in section 12.2 above, except that:
the competent supervisory authority is the Swiss Federal Data Protection and Information Commissioner;
references to “Member State” in the EU SCCs refer to Switzerland, and data subjects located in Switzerland may exercise and enforce their rights under the EU SCCs in Switzerland; and
references to the “General Data Protection Regulation,” “Regulation 2016/679,” and “GDPR” in the EU SCCs refer to the Swiss FADP (as amended or replaced).
Transfers from the UK. With regards to transfers of FTS Data protected by the UK GDPR, the UK Addendum to the EU Standard Contractual Clauses (“UK Addendum”) issued by the Information Commissioner’s Office (“ICO”) under s.119A(1) of the Data Protection Act 2018 is hereby incorporated and shall apply as follows:
the EU SCCs, completed as set out in section 10.1.1 above and as attached hereto, shall also apply to transfers of such Customer Data;
the UK Addendum shall be deemed executed between FTS and Customer and the EU SCCs shall be deemed amended as specified by the UK Addendum in respect of the transfer of such Customer Data; and
the competent supervisory authority for such FTS Data protected by the UK GDPR shall be the ICO.
If, in the performance of this Addendum, FTS transfers any Personal Data to a Sub-processor that Processes Personal Data outside the European Union, Switzerland or the United Kingdom, then FTS will in advance of any such transfer ensure that a mechanism to achieve adequacy in respect of that Processing is in place, such as: (a) the requirement for FTS to execute or procure that the third-party execute Standard Contractual Clauses; or (b) any other specifically approved safeguard for data transfers (as recognised under Data Protection Laws) and/or a European Commission finding of adequacy.
To the extent the transfer mechanism relied on for any extra-territorial Personal Data transfers from a Customer in the European Union, Switzerland, or the United Kingdom, as applicable, hereunder to a location that is no longer deemed to provide an adequate level of protection under applicable Data Protection Laws, the Parties will promptly meet, within 60 days of FTS being made aware of such inadequacy, to discuss and agree an alternative transfer mechanism or alternative supplementary measures in line with relevant guidance provided in respect of Data Protection Laws as soon as reasonably possible. FTS shall use reasonable efforts to monitor the effectiveness of its supplementary measures, and may make any appropriate changes or adjustments it deems necessary (acting reasonably and in good faith).
To the extent that Customer Data relates to California residents, FTS is a service provider, as defined by the CPRA, of the Customer.
To the extent that Customer Data relates to California residents, FTS will not retain, use, sell, share, or otherwise disclose Customer Data (including for any commercial purpose or other purpose outside of the direct business relationship between the parties) other than as allowed by law or as needed to provide and support the Products, as set forth in the Agreement. For purposes of this section, the terms “sell” and “share” shall have the meaning given to them in the CPRA.
To the extent that Customer Data relates to California residents, FTS will comply with any applicable restrictions under the CPRA on combining such Customer Data that FTS receives from, or on behalf of, Customer with Personal Data that FTS receives from, or on behalf of, another person or persons, or that FTS collects from any interaction between it and a Data Subject.
To the extent that Customer Data relates to California residents, FTS will comply with the CPRA and, taking into consideration FTS’s role in the Processing, provide the level of protection for the relevant Customer Data required by the CPRA.
GOVERNING LAW
Jurisdiction. Without prejudice to EU SCCs attached as EXHIBIT B, the Parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.
Standard Contract Clauses. Nothing in this Addendum reduces the obligations of FTS under the Agreement in relation to the protection of Personal Data or permits FTS or any FTS Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. It is not the intention of the Customer or FTS to contradict or restrict any of the provisions set forth in the EU SCCs and UK Addendum and, accordingly, if and to the extent the EU SCCs and/or UK Addendum conflict with any provisions of the Agreement, the EU SCCs and/or UK Addendum shall prevail to the extent of such conflict. If a new Data Protection Law becomes effective and is applicable to FTS, FTS and Customer will take all reasonable steps required by such Data Protection Law to ensure the parties’ ability to comply with their respective obligations under applicable Data Protection Laws.
Conflicts with this Addendum. Subject to Section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
LEGAL EFFECT
This DPA shall only become legally binding between Customer and FTS upon Customer’s execution of the Agreement.
SEVERANCE
Should any provisions of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (1) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely ads possible or, if this is not possible, (2) constructed in a manner as if the invalid or unenforceable part has never been contained therein.
CHANGES
If FTS gives a notice under this DPA or the Agreement, the Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternate variations designed to address the requirements identified in FTS’s notice as soon as reasonably practical.
TERM
This DPA shall remain in effect as long as FTS carries out Personal Data Processing operations on behalf of Customer or until the termination of the Agreement (and all Personal Data has been returned or deleted in accordance with DPA).
Last modified July 31, 2024
EXHIBIT A – DETAILS OF THE PROCESSING
Nature and Purpose of Processing
FTS will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by Customer in its use of the Services. Processing will include data storage and user usage analytics in the new platform.
Duration of Processing
Subject to the terms of the DPA, FTS will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Prospects, customers, business partners and vendors of Customer (who are natural persons)
Employees or contact persons of Customer’s prospects, customers, business partners, and vendors
Employees, agents, contractors, advisors, freelancers of Customer (who are natural persons)
Customer’s end-user authorized by Customer to use the Services
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, and which may include, but is not limited to the following categories of Personal Data:
First and last name
Title
Position
Employer
Contact information
Account information
Device information
Personal life data
Professional life date
Usage and preference information
Geolocation data
Connection data
Driver and vehicle information
EXHIBIT B – EU SCCS
Purpose and scope
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 or “GDPR”)(1) for the transfer of personal data to a third country.
The Parties:
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
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”).
These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors, 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.
) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
Clause 8.1(b), 8.9(a), (c), (d) and (e);
Clause 9(a), (c), (d) and (e);
Clause 12(a), (d) and (f);
Clause 13; (vi) Clause 15.1(c), (d) and (e);
Clause 16(e);
Clause 18(a) and (b).
Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
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 – Intentionally Omitted
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
Instructions
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.
The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
Purpose limitation The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
Transparency On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise their rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
Accuracy If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
Duration of processing and erasure or return of data Processing by the data importer shall only take place for the duration specified in 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).
Security of processing
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.
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.
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.
The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
Sensitive data Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
Onward transfers The data importer shall only disclose the personal data to a third-party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third-party located outside the European Union(2) (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third-party is or agrees to be bound by these Clauses , under the appropriate Module, or if:
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;
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;
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
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person. Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
Documentation and compliance
The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
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.
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.
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.
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
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 10 calendar 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.
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.
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.
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.
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
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.
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.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
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.
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.
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:
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;
refer the dispute to the competent courts within the meaning of Clause 18.
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.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
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
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.
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.
Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
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.
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.
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.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
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
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.
The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
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;
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(3);
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.
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.
The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
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).
Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
Notification
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:
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
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.
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.
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.).
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.
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.
Review of legality and data minimisation
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).
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.
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
The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
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).
(The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
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;
the data importer is in substantial or persistent breach of these Clauses; or
the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses. In these cases, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
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.
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 the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
The Parties agree that those shall be the courts of the Republic of Ireland.
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.
The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX 1 TO THE STANDARD CONTRACTUAL CLAUSES
LIST OF PARTIES Data exporter The data exporter is: Customer named in the Agreement Role: Controller Address: As set forth in the Agreement Activities relevant to the data transferred under these Clauses: As detailed in Section B below
Data importer The data importer is: FTS Role: Processor Activities relevant to the data transferred under these Clauses: As detailed in Section B below
DESCRIPTION OF TRANSFER Data subjects
The personal data transferred concern the following categories of data subjects (please specify): Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Prospects, customers, business partners and vendors of Customer (who are natural persons)
Employees or contact persons of Customer’s prospects, customers, business partners and vendors
Employees, agents, advisors, freelancers of Customer (who are natural persons)
Customer’s Authorized Users authorized by Customer to use the Services
Categories of data
The personal data transferred concern the following categories of data (please specify): Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
First and last name
Title
Position
Employer
Contact information
Account information
Device information
Personal life data
Professional life date
Usage and preference information
Geolocation data
Driver and vehicle information
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Data exporter may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify): Customer Data The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement.
Nature of the processing
FTS will Process Customer for the purposes of providing the Services to the Customer in accordance with, and as otherwise permitted by, the Agreement, and for any disclosures compelled by law.
Purpose(s) of the data transfer and further processing
FTS will Process Customer Personal Data for the purposes of providing the Products to the Customer in accordance with, and as otherwise permitted by, the Agreement, and for any disclosures compelled by law. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The term of the Agreement plus the period from the expiry or termination of the Agreement until deletion of all Customer Data by FTS in accordance with the Agreement. Specific Customer Personal Data may have specific data retention and deletion policies in place (e.g., video data from dash cameras utilized by the customers located in the EEA, which is uploaded to the Hosted Software have a six months retention policy and deletion schedule in place as a default setting; which the Customer accepts, which can be amended due to Customer requirements).
COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, shall act as competent supervisory authority. Where the data exporter is 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, shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, shall act as competent supervisory authority.
ANNEX 2 TO THE STANDARD CONTRACTUAL CLAUSES
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Agreement.
EXHIBIT C – List of Sub-Processors
THE CONTROLLER HAS AUTHORIZED THE USER OF THE SUB-PROCESSOERS LISTED BELOW:
SUB-PROCESSOR
PURPOSE OF SUBPROCESSING
PRIMARY LOCATION
Amazon Web Services, Inc.
Hosting services
USA; Ireland
Oracle Cloud Infrastructure
Hosting services; data analytics and hosting data processing services
