Data Processing Addendum

DATA PROCESSING AGREEMENT

Version Date: June 1, 2023

This Data Protection Agreement (“Agreement”) is incorporated by reference into the SaaS Services Agreement (“SaaS Agreement”) under which Mitsogo Inc. (“Company”) has agreed to provide Services (“Service”) to you (“Customer”). This Agreement sets out the additional terms, requirements, and conditions on which the Company will process personal data when providing Services to the Customer under the SaaS Agreement and contains mandatory clauses under the GDPR for contracts between controllers and processors.

This Agreement will be effective and replace any terms previously applicable to the processing of Personal Data, from the Effective Date (defined below).

The Company and the Customer are individually referred to as a “Party” and collectively as “Parties”.

IT IS AGREED:


§ 1. DEFINITIONS AND INTERPRETATION

§ 1.1. DEFINITIONS

  1. “Anonymised Data” shall mean the Personal Data that has been rendered anonymous so that the data does not relate to an identified or identifiable Data Subject in accordance with the standards required under the GDPR.
  2. “Business Purposes” mean the services to be provided by the Company under the terms of the SaaS Agreement.
  3. “Applicable Data Protection Laws” shall mean the GDPR and all other legislation and regulatory requirements in force from time to time which apply to a Party with respect to the use of Personal Data.
  4. “Data Subject” shall mean an individual who is the subject of Personal Data.
  5. “EEA” means the European Economic Area.
  6. “Effective Date” means the date on which the Customer accepted, or the Parties otherwise agreed to, this Agreement.
  7. “GDPR” means the General Data Protection Regulation ((EU) 2016/679).
  8. “Personal Data” shall mean any information relating to an identified or identifiable natural person that is processed by the Company as a result of, or in connection with, the Business Purposes.
  9. “Personal Data Breach” shall mean a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored, or otherwise processed on systems managed or controlled by the Company.
  10. “Processing” (and the terms “processes” and “process” shall be construed accordingly) means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
  11. “Standard Contractual Clauses” or “SCCs” shall mean the European Commission’s Standard Contractual Clauses.
  12. “appropriate technical and organisational measures”, “controller”, and “processor”, shall be interpreted in accordance with the GDPR.
  13. “UK SCC Addendum” shall mean the UK International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as revised under Section 18 of those Mandatory Clauses attached to this Agreement as Schedule D.

§ 1.2. INTERPRETATION

  1. The Recitals and Schedules annexed hereto shall constitute an integral part of this Agreement. References to this Agreement include any Recitals and Schedules to it and references to Clauses and Schedules are to the clauses of, and schedules to, this Agreement. References within Schedules to clauses are to the clauses of the Schedules.
  2. Any reference to books, records, or other information means books, records, or other information in any form including, without limitation, paper and electronically stored data.
  3. Any reference to writing includes typing, printing, and email but excludes any other form of electronic communication.
  4. Heading and bold typeface are for convenience and shall be ignored for the purpose of interpretation.
  5. Words using the singular or plural also include the plural or singular respectively.
  6. In the case of conflict or ambiguity between:
    1. any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement will prevail;
    2. notwithstanding Clause 1.2(e)(i), any of the provisions of this Agreement and Schedule C, the provisions of Schedule C will prevail; and
    3. notwithstanding anything to the contrary in the SaaS Agreement, any of the provisions of this Agreement and the provisions of the SaaS Agreement, the provisions of this Agreement will prevail.
    4. for data transfers governed by UK data protections laws and regulations, Schedule C shall be read along with Schedule D as applicable.

§ 2. PERSONAL DATA TYPES AND PROCESSING PURPOSES

  1. 2.1 The Parties agree that for the purpose of the Applicable Data Protection Laws, the Customer is the controller and the Company is the processor with respect to the processing of Personal Data.
  2. 2.2 The Parties agree that the Customer retains control of the Personal Data and remains responsible for compliance with its obligations under the Applicable Data Protection Laws. In this regard, the Customer warrants that all Personal Data provided to or otherwise accessed by the Company under this Agreement or the SaaS Agreement shall comply in all respects, including in terms of its collection, storage, and processing (including providing any required notices and obtaining any required consents), with Applicable Data Protection Laws.
  3. 2.3 The Customer hereby acknowledges and agrees that the Company shall be free, at its sole discretion, to process, use or disclose the Anonymised Data, for its own business purposes or internal use, without any restriction(s).

§ 3. COMPANY'S OBLIGATIONS

  1. 3.1 So far as the Company processes Personal Data on the terms of this Agreement, it shall only do so in accordance with the Customer’s documented instructions as detailed in Schedule A or as otherwise agreed upon between the Parties in writing from time to time, and solely to the extent necessary for the Business Purposes. The Company will notify the Customer (a) if, in its opinion, the Customer’s instructions do not comply with the Applicable Data Protection Laws, or (b) of any changes to the Applicable Data Protection Laws that may adversely affect the Company’s performance of the SaaS Agreement.
  2. 3.2 The Parties agree to review the information listed in the Schedules to this Agreement from time to time to confirm its compliance with Applicable Data Protection Laws and update it when required to reflect current practices.
  3. 3.3 Company’s Personnel: The Company will ensure that the personnel it authorises to process Personal Data are informed of the confidential nature of the Personal Data and bound by confidentiality obligations in respect of the Personal Data. Access to Personal Data shall be on a need-to-know basis and necessary for the performance of the SaaS Agreement.
  4. 3.4 The Company will extend reasonable assistance to the Customer to meet the Customer’s compliance obligations under the Applicable Data Protection Laws, including in relation to Data Subject rights, data protection impact assessments, and reporting to and consulting with supervisory authorities under Applicable Data Protection Laws.

§ 4. SECURITY

  1. 4.1 The Customer acknowledges that in respect of the Personal Data processed, the Company implements appropriate technical and organisational measures detailed in Schedule B and Annex II to the Appendix of Schedule C to ensure a level of security appropriate to the risk of processing.

§ 5. PERSONAL DATA BREACH

  1. 5.1 The Company shall, within 48 (Forty Eight) hours, notify the Customer if it becomes aware of any Personal Data Breach.
  2. 5.2 The Customer shall, at all times, remain solely responsible under the Applicable Data Protection Laws for reporting Personal Data Breaches to supervisory authorities or Data Subjects, as the case may be.
  3. 5.3 The Parties will co-ordinate with each other to investigate any Personal Data Breach. Where necessary, the Company shall use reasonable efforts to provide further information of the Personal Data Breach to the Customer.

§ 6. CROSS-BORDER TRANSFERS OF PERSONAL DATA

  1. 6.1 The Customer authorises the Company to transfer and process Personal Data outside the EEA solely for Business Purposes.
  2. 6.2 Where such cross-border transfers occur, the Company may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:
    1. the Company is processing the Personal Data in a territory which is subject to adequacy regulations under the Applicable Data Protection Laws that the territory provides adequate protection for the privacy rights of individuals. The Company shall identify in Schedule A the territory that is subject to such adequacy regulations; or
    2. the Company participates in a valid cross-border transfer mechanism under the Applicable Data Protection Laws, so that the Company (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Applicable Data Protection Laws; or
    3. the transfer otherwise complies with the Applicable Data Protection Laws for the reasons set out in Schedule A.
  3. 6.3 If the Customer consents to appointment by the Company of a Sub-processor located outside the EEA in compliance with the provisions of Clause 7, then the Customer authorises the Company to enter into SCCs contained in Schedule C with the Sub-processor in the Customer’s name and on its behalf. The Company will make the executed SCC available to the Customer on request.

§ 7. SUB-PROCESSORS

  1. 7.1 The Customer authorises the Company to appoint third parties to meet obligations under this Agreement and the SaaS Agreement (these third parties are referred to as “Sub-processors”). A list of Sub-processors is annexed under Schedule A. The Company can at any time appoint a new Sub-processor, provided that it gives the Customer at least 7 (Seven) days’ prior notice.
  2. 7.2 The Company shall enter into written agreements with each Sub-processor, containing data protection obligations that provide a similar level of protection for Personal Data as those covered in this Agreement, to the extent applicable with respect to the nature of services provided by such Sub-processor.

§ 8. TERM AND TERMINATION

  1. 8.1 This Agreement will remain in full force and effect so long as:
    1. the SaaS Agreement remains in effect; or
    2. the Company retains any Personal Data related to the SaaS Agreement in its possession or control (“Term”).
  2. 8.2 Termination or expiry of this Agreement does not affect the survival of any provision of this Agreement which is expressly or by implication intended to survive termination or expiry.
  3. 8.3 If a change in any Applicable Data Protection Laws prevents either Party from fulfilling all or part of its obligations under the SaaS Agreement, the Parties will suspend the processing of Personal Data until that processing complies with the new requirements. If the Parties are unable to bring the Personal Data Processing into compliance with the Applicable Data Protection Laws, they may amend the scope of or otherwise terminate the SaaS Agreement on written notice to the other Party.

§ 9. DATA RETURN AND DESTRUCTION

  1. 9.1 At the Customer’s request, the Company will provide the Customer with a copy of or access to all or part of the Personal Data in its possession or control.
  2. 9.2 On expiry or termination of the SaaS Agreement and upon the Customer’s request, the Company will (a) delete or destroy, to the extent technically possible, or, if directed in writing by the Customer, return and not retain, all or any Personal Data related to this Agreement in its possession or control, or (b) render the Personal Data into Anonymised Data, so that it no longer constitutes Personal Data; provided, however, that this Clause shall not apply to any obligations of the Company to retain any information, documents, or materials in accordance with applicable laws.

§ 10. AUDIT

  1. 10.1 During the Term, the Company will, in accordance with the Applicable Data Protection Laws, provide the Customer with such information that is reasonable necessary to demonstrate the Company’s compliance with its obligations under Article 28 of the GDPR, and allow the Customer to audit such information, subject to the following:
    1. the Customer shall provide the Company with at least 30 (Thirty) days’ prior written notice of information requests or audits;
    2. the Customer and its authorised personnel shall undertake confidentiality obligations in a form and manner acceptable to the Company prior to such audit or their receipt of information;
    3. audits shall be conducted during the Company’s normal business hours; and
    4. the Customer shall reimburse the Company for any costs that the Company incurs to give effect to or enable the Customer’s rights under this Clause.

§ 11. INDEMNITY AND LIMITATION OF LIABILITY

  1. 11.1 Each Party (“Indemnifying Party”) agrees to indemnify and hold harmless the other Party, its affiliates, and their respective directors, officers, employees, and agents from and against any liabilities, claims, damages, demands, suits, actions, proceedings, costs and expenses incurred or suffered in connection with or arising directly out of any of the following:
    1. breach, negligent act or omission, or wilful default directly attributable to the Indemnifying Party;
    2. breach of or violation of or non-compliance with any of the obligations, warranties, or representations herein directly attributable to the Indemnifying Party; and
    3. violation, breach, or non-compliance with any Applicable Data Protection Laws directly attributable to the Indemnifying Party.
  2. 11.2 Each Party’s liability arising out of or related to this Agreement, whether in contract, tort, or otherwise, is subject to the ‘Limitation of Liability’ clause of the SaaS Agreement.
  3. 11.3 To the maximum extent permitted by Applicable Data Protection Laws, the Company shall not be liable in any manner (including liabilities that arise by way of contract, tort, or otherwise) for any losses, costs, expenses, or liabilities arising from or in connection with any processing in accordance with the Customer’s processing instructions.

§ 12. MISCELLAENOUS

  1. 12.1 Any notice or other communication given to a Party under or in connection with this Agreement must be in accordance with the provisions of the SaaS Agreement.
  2. 12.2 This Agreement shall be governed by the governing law and dispute resolution provisions of the SaaS Agreement.

IN WITNESS WHEREOF, this Agreement is entered into with effect from the Effective Date.


SCHEDULE A


PERSONAL DATA PROCESSING INDEX

  1. Subject Matter of Processing: Data pertaining to Customers, and the employees and other personnel of Customers.
  2. Duration of Processing: Data transferred will be stored for a period of 3 months from the date on which the Customer terminates its Hexnode subscription.
  3. Nature of Processing: The Personal Data processed will be subject to the basic processing activities required for the provision of the Hexnode UEM to the Customer. These activities primarily include the gathering of device-related information, which is made accessible to the Customer through an easy-to-understand and manageable interface, empowering the Customer to supervise their enterprise device usage effectively. Hexnode does not perform any active monitoring or analysis of this data; the data processing is carried out solely to support the Customer's own use and management
  4. Business Purposes: Personal Data will be processed for purposes of providing Hexnode UEM as set out in the SaaS Agreement, as further instructed by Customer in its use of Hexnode UEM, and otherwise agreed to in the Hexnode Terms of Use, Privacy Policy and any applicable order form.
  5. Personal Data Categories: Device hardware and software details, location data, network information, user details, communication details, Customer’s billing details and any other data provided by Customer in course of using Hexnode.
  6. Special Categories of Data (if applicable): Company does not, at this stage, process special categories of personal data.
  7. Data Subject Types: Customer, personnel and employees of Customer.
  8. Identify the Company’s legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions: Standard Contractual Clauses between the Company as “data exporter” on behalf of Customer and Company affiliate or Sub-processor as “data importer”.
  9. LIST OF SUB-PROCESSORS: https://www.hexnode.com/mobile-device-management/help/list-of-hexnode-subprocessors/


SCHEDULE B


SECURITY MEASURES

  • Physical access controls: Data Processor employs measures designed to prevent unauthorized persons from gaining access to facilities, data processing systems and other sensitive areas in which Personal Data is Processed, such as the use of security personnel, secured buildings and data center premises.
  • System access controls: The following may, among other controls, be applied depending upon the particular services ordered: authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and logging of access on several levels. For Services hosted at Data Processor: (i) log-ins by Data Processor employees and Sub processors are logged; (ii) logical access to the data centers is restricted and protected by firewall/VLAN; and (iii) intrusion detection systems, centralized logging and alerting, and firewalls are used.
  • Data access controls: Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted, and application access rights are established and enforced. In addition to the access control rules, Data Processor implements an access control policy under which Customer controls access to its Services environment and to Personal Data and other data by its authorized personnel.
  • Transmission controls: Except as otherwise specified for the Services (including within any applicable service specifications referenced in the Agreement), transmissions of data outside the Services environment are encrypted. Some aspects of the Services may be configurable by Customer to permit access to third-party sites that require unencrypted communications. The content of communications (including sender and recipient addresses) sent through some email or messaging services may not be encrypted. Customer is solely responsible for the results of its decision to use such unencrypted communications or transmissions.
  • Input controls: The Personal Data source is under the control of the Customer, and Personal Data integration into the system, is managed by secured file transfer (i.e., via web services or entered into the application) from the Customer. Some features of the Service permit Customers to use unencrypted file transfer protocols. In such cases, Customer is solely responsible for its decision to use such unencrypted field transfer protocols.
  • Data backups: For Services hosted at Data Processor: back-ups are taken on a regular basis; backups are secured using technical controls.
  • Data segregation: Personal Data received from different customers are logically segregated on Data Processor's systems.
  • Confidentiality: All Data Processor employees and Sub-processors that may have access to Personal Data are subject to appropriate confidentiality arrangements.

SCHEDULE C

STANDARD CONTRACTUAL CLAUSES

SECTION I


Clause 1

Purpose and scope

  1. 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.
  2. The Parties:
    1. 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
    2. 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”)
  3. have agreed to these standard contractual clauses (hereinafter: “Clauses”).

  4. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  5. 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

  1. 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.
  2. 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

  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
    2. Clause 8.1(b), 8.9(a), (c), (d) and (e);
    3. Clause 9(a), (c), (d) and (e);
    4. Clause 12(a), (d) and (f);
    5. Clause 13;
    6. Clause 15.1(c), (d) and (e);
    7. Clause 16(e);
    8. Clause 18(a) and (b).
  2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. 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

Docking clause

  1. 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.
  2. 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.
  3. 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.

§ 8.1 Instructions

  1. 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.
  2. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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:

  1. 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;
  2. 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;
  3. 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
  4. 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

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.
  4. 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.
  5. 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

  1. 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 14 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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

  1. 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.
  2. 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.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

  1. 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.

    The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.

  2. 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.
  3. 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:
    1. 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;
    2. refer the dispute to the competent courts within the meaning of Clause 18.
  4. 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.
  5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  6. 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

  1. 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.
  2. 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.
  3. 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
  4. 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.
  5. 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
  6. 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.
  7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

  1. 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.

  2. 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

  1. 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.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. 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;
    2. 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.
  3. 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.
  4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  5. 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).
  6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

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

§ 15.1. Notification

  1. 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:
    1. 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
    2. 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.
  2. 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.
  3. 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.).
  4. 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.
  5. 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

  1. 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).
  2. 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.
  3. 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

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. 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).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
    1. 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;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
  4. 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.

  5. 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.
  6. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

    These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Austria.


Clause 18

Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of Austria.
  3. 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.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

ANNEX Ⅰ

A. LIST OF PARTIES

Data exporter(s):

  1. Name:

    Address:

    Contact person’s name, position and contact details:

    Activities relevant to the data transferred under these Clauses:

    Signature and date:

    Role (controller/processor): Controller

Data importer(s):

  1. Name: Mitsogo, Inc.

    Address: 111 Pine St #1225, San Francisco, CA 94111, United States of America

    Contact person’s name, position and contact details: Rachana Vijayan, CMO & Privacy Officer Email- legal@hexnode.com

    Activities relevant to the data transferred under these Clauses: Provision of the Hexnode UEM

    Signature and date:

    Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Mitsogo, Inc. will process persona data related to the Customer and Personal Data related to Customer’s users.

Categories of personal data transferred

Device hardware and software details, location data, network information, user details, communication details, Customer’s billing details and any other data provided by Customer in course of using Hexnode.

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

N/A

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

Continuous Transfer

Nature of the processing

The Personal Data processed will be subject to the basic processing activities required for the provision of the Hexnode UEM to the Customer. These activities primarily include the gathering of device-related information, which is made accessible to the Customer through an easy-to-understand and manageable interface, empowering the Customer to supervise their enterprise device usage effectively. Hexnode does not perform any active monitoring or analysis of this data; the data processing is carried out solely to support the Customer's own use and management.

Purpose(s) of the data transfer and further processing

Personal Data will be processed for purposes of providing Hexnode UEM as set out in the SaaS Agreement, as further instructed by Customer in its use of Hexnode UEM, and otherwise agreed to in the Hexnode Terms of Use, Privacy Policy and any applicable order form.

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

Data transferred will be stored for a period of 3 months from the date on which the Customer terminates its Hexnode UEM subscription.

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

https://www.hexnode.com/legal/sub-processors


C. COMPETENT SUPERVISORY AUTHORITY

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

-


ANNEX Ⅱ

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.

Technical Measures

Hexnode exercises a set of layered security services and cryptographic framework that is in accordance with industry standard. Hexnode’s data security architecture is designed to implement preventative, detective, and remediation policies ensuring robust architectural security.

  • Strong encryption of data in transit as well as at rest, generally.
  • Secure implementation of encryption, particularly in respect of key management.
  • Full anonymisation, so that identifying a specific data subject is impossible without the use of additional information.
  • Hexnode conducts routine IOS 27001 audits.
  • Hexnode is actively pursuing SOC 2 certification and expects to be certified in the near term.
  • Penetration testing is conducted annually.

Organisational Measures

  • Adopting adequate internal policies with clear allocation of responsibilities for data transfers, reporting channels and standard operating procedures for cases of formal or informal requests from public authorities to access data.
  • Developing specific training procedures for personnel in charge of managing requests for access to personal data from public authorities.
  • Documenting and recording the requests for access received from public authorities and the response provided, alongside the legal reasoning and the actors involved.
  • Adopting data minimisation measures such as access control mechanisms and confidentiality principles and best practices, such as ‘need-to-know’ or ‘least privilege’ principles. Additionally, the amount and type of data transferred to the third country must be limited to what is necessary.
  • Obtaining commitments from the data importer to not engage in onward transfers of personal data or suspend ongoing transfers when an essentially equivalent level of protection of personal data of that afforded in the EEA cannot be guaranteed in the third country.

Mitsogo Inc. (“Our”, “us”) provides a multi-tenant SaaS solution where the customer data is logically segmented. Dedicated sub-domains are assigned per tenant. Each user has a unique ID and all the data and objects specific to the user are stored in it. Our application log consists of log details, IP details and security related administrative and configuration settings. Individual customer data can be recovered, changed, and removed upon request. We require that all Customers warrant that any data collected by Hexnode UEM is in accordance with local law related to monitoring of employees and other personnel.

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

  • Physical access controls: Data Processor employs measures designed to prevent unauthorized persons from gaining access to facilities, data processing systems and other sensitive areas in which Personal Data is Processed, such as the use of security personnel, secured buildings and data center premises.
  • System access controls: The following may, among other controls, be applied depending upon the particular services ordered: authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and logging of access on several levels. For Services hosted at Data Processor: (i) log-ins by Data Processor employees and Sub processors are logged; (ii) logical access to the data centers is restricted and protected by firewall/VLAN; and (iii) intrusion detection systems, centralized logging and alerting, and firewalls are used.
  • Data access controls: Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted, and application access rights are established and enforced. In addition to the access control rules, Data Processor implements an access control policy under which Customer controls access to its Services environment and to Personal Data and other data by its authorized personnel.
  • Transmission controls: Except as otherwise specified for the Services (including within any applicable service specifications referenced in the Agreement), transmissions of data outside the Services environment are encrypted. Some aspects of the Services may be configurable by Customer to permit access to third-party sites that require unencrypted communications. The content of communications (including sender and recipient addresses) sent through some email or messaging services may not be encrypted. Customer is solely responsible for the results of its decision to use such unencrypted communications or transmissions.
  • Input controls: The Personal Data source is under the control of the Customer, and Personal Data integration into the system, is managed by secured file transfer (i.e., via web services or entered into the application) from the Customer. Some features of the Service permit Customers to use unencrypted file transfer protocols. In such cases, Customer is solely responsible for its decision to use such unencrypted field transfer protocols.
  • Data backups: For Services hosted at Data Processor: back-ups are taken on a regular basis; backups are secured using technical controls.
  • Data segregation: Personal Data received from different customers are logically segregated on Data Processor's systems.
  • Confidentiality: All Data Processor employees and Sub-processors that may have access to Personal Data are subject to appropriate confidentiality arrangements.


SCHEDULE D

PART 2

UK INTERNATIONAL DATA TRANSFER ADDENDUM TO EU COMMISSION STANDARD CONTRACTUAL CLAUSES


BACKGROUND

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

AGREED TERMS

DATE: Last date of signature of the EU SCCs to which this Addendum is appended and incorporated into the above DPA.

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

"Appendix Information" means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Table 4: Ending this Addendum when the Approved Addendum changes

Part 2: Mandatory Clauses


    Entering into this Addendum

  1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
  2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

  3. Interpretation of this Addendum

  4. Where this Addendum uses terms that are defined in the Approved EU SCCs, those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

    Addendum: This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.

    Addendum EU SCCS: The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.

    Appendix Information: As set out in Table 3.

    Appropriate Safeguards: The standard of protection over the personal data and of data subjects' rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) of the UK GDPR.

    Approved Addendum: The template Addendum issued by the ICO and laid before Parliament in accordance with section 119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.

    Approved EU SCCs: The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.

    ICO: The Information Commissioner.

    Restricted Transfer: A transfer which is covered by Chapter V of the UK GDPR.

    UK: The United Kingdom of Great Britain and Northern Ireland.

    UK Data Protection Laws: All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

    UK GDPR: As defined in section 3 of the Data Protection Act 2018.

  5. This Addendum must always be interpreted in a manner that is consistent with the UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
  6. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
  7. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
  8. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
  9. 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.
  10. Hierarchy

  11. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
  12. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
  13. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation ((EU) 2016/679), then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
  14. Incorporation of and changes to the EU SCCs

  15. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
    1. together they operate for data 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 data transfer, and they provide Appropriate Safeguards for those data transfers;
    2. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
    3. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
  16. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
  17. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
  18. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
    1. References to the "Clauses" mean this Addendum, incorporating the Addendum EU SCCs;
    2. In Clause 2, delete the words:

      "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";

    3. 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.";

    4. Clause 8.7(i) of Module 1 is replaced with:

      "it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer";

    5. Clause 8.8(i) of Modules 2 and 3 is replaced with:

      "the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;"

    6. References to "Regulation (EU) 2016/679", "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)" and "that Regulation" are all replaced by "UK Data Protection Laws". References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
    7. References to Regulation (EU) 2018/1725 are removed;
    8. References to the "European Union", "Union", "EU", "EU Member State", "Member State" and "EU or Member State" are all replaced with "the UK";
    9. The reference to "Clause 12(c)(i)" at Clause 10(b)(i) of Module 1 is replaced with "Clause 11(c)(i)";
    10. Clause 13(a) and Part C of Annex I are not used;
    11. The "competent supervisory authority" and "supervisory authority" are both replaced with the "Information Commissioner";
    12. In Clause 16(e), subsection (i) is replaced with:

      "the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;";

    13. Clause 17 is replaced with:

      "These Clauses are governed by the laws of England and Wales.";

    14. Clause 18 is replaced with:

      "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."; and

    15. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.Amendments to this Addendum
  19. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
  20. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
  21. From time to time, the ICO may issue a revised Approved Addendum which:
    1. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
    2. reflects changes to UK Data Protection Laws.

    The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

  22. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 "Ending the Addendum when the Approved Addendum changes", will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
    1. its direct costs of performing its obligations under the Addendum; and/or
    2. its risk under the Addendum,

    and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

  23. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

    Alternative Part 2 Mandatory Clauses

This agreement has been entered into on the date stated at the beginning of it.