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This Data Processing Addendum (“DPA”) forms part of the Agreement (the “Agreement”) between Customer and DISCO, to reflect the parties’ agreement about the Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws and Regulations. References to the Agreement will be construed as including without limitation this DPA. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement. In the event of a conflict between the Agreement and this DPA, the terms of this DPA shall prevail.
a. “Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom, and the United States, applicable to the Processing of Personal Data under the Agreement, including the UK General Data Protection Regulation (“UK GDPR”), the EU General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679) and the California Consumer Privacy Act (“CCPA”).
b. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
c. “Data Subject” means an individual who is the subject of Personal Data.
d. “Data Subject Request” means a request made by a Data Subject to exercise a right conferred on them in relation to Personal Data by the Data Protection Laws and Regulations.
e. “Personal Data” means any data relating to an identified or identifiable individual that are within the scope of protection as “personal data” under the Data Protection Laws and Regulations, and that are Processed by DISCO on behalf of Customer in connection with the provision of the DISCO software and services (but excluding any data that DISCO may process on its own behalf, such as to administer access to the DISCO software and services, or provide support services).
f. Processing Data. "Process” or Processing" means any operation or set of operations performed upon Personal Data or sets of Personal Data, whether or not by automated 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.
g. “EU Controller to Processor Model Clauses” means the agreement between Customer and DISCO and attached hereto as Schedule 3 pursuant to the European Commission’s Implementing Decision (EU) 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.
h. “UK Controller to Processor Model Clauses” means the agreement between Customer and DISCO and attached hereto as Schedule 2 pursuant to the European Commission’s decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Union and of the Council, as amended by the UK Information Commissioner’s Office.
a. Roles of the Parties. The parties agree that for the purposes of the UK GDPR and the GDPR, Customer is the controller solely responsible for determining the purposes and means of the Processing of Personal Data, and DISCO is Customer’s processor responsible for Processing Personal Data on behalf of the controller. DISCO may engage sub-processors to Process Personal Data pursuant to the requirements set forth in Section 3 “Sub-Processors” below.
b. Customer’s Processing of Personal Data. Customer is solely responsible for its compliance with the Data Protection Laws and Regulations, including without limitation the lawfulness of any transfer of Personal Data to DISCO and DISCO’s Processing of Personal Data. For the avoidance of doubt, but not by way of limitation, Customer’s instructions for the Processing of Personal Data must comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, including providing any required notices to Data Subjects. Customer takes full responsibility to keep the amount of Personal Data provided to DISCO to the minimum necessary for DISCO to administrate the contractual relationship and to provide Customer with the DISCO software and services. Customer shall be solely responsible for establishing and maintaining any data processing registers or overview as required by any applicable law, including without limitation the Data Protection Laws and Regulations.
c. Customer’s Right to Issue Instructions. DISCO shall only Process Personal Data in accordance with Customer’s written instructions, unless DISCO is required to process the Personal Data for other reasons under the Data Protection Laws and Regulations. Customer’s initial instructions for the Processing of Personal Data are defined by the Agreement, Schedule 1 to this DPA, and any applicable order form or statement of work regarding the software and services. Subject to the terms of this DPA and with mutual agreement of the parties, Customer may issue additional written instructions concerning the type, extent and procedure of Processing. Any changes of the subject matter of Processing and of procedures shall be agreed upon by the parties in writing prior to becoming effective. Customer is responsible for ensuring that all individuals who provide written instructions to DISCO are authorized by Customer to issue instructions to DISCO. DISCO will inform Customer of any instruction that it deems to be in violation of Data Protection Laws and Regulations, and DISCO will not execute such instructions until the instruction has been confirmed or modified by Customer.
d. Details of Processing. The initial nature and purpose of the Processing, duration of the Processing, categories of Data Subjects, and types of Personal Data are set forth in Appendix 1 to Schedule 2 of this DPA.
e. Impact Assessments and Consultations. DISCO shall, at Customer’s expense, provide reasonable assistance, including by providing any relevant information, as Customer reasonably requires in order for Customer to prepare any data protection impact assessments or undertake any necessary data protection consultation required by the Data Protection Laws and Regulations.
f. Data Breach. DISCO shall notify Customer without undue delay in accordance with the applicable Data Protection Laws and Regulations upon becoming aware of a confirmed Data Breach, and shall provide Customer with reasonable assistance to allow Customer to notify Data Subjects or applicable regulatory authorities of the Data Breach where required by applicable Data Protection Laws and Regulations.
g. Return or Deletion of Customer Personal Data. Unless otherwise required by applicable laws to which DISCO is subject, DISCO will destroy or return to Customer its Personal Data upon termination or expiration of the relevant provisions of the Agreement.
a. Use of Sub-processors. Customer agrees that DISCO may engage sub-processors to Process Personal Data in accordance with the DPA. A list of sub-processors including their addresses is available upon request. When engaging sub-processors, DISCO shall enter into agreements with the sub-processors to bind them to obligations which are substantially similar to those set out in this DPA. To the extent required, Customer explicitly mandates DISCO to sign such agreements directly with the sub-processors. Customer will not directly communicate with DISCO’s sub-processors about the software or services, unless agreed to by DISCO in DISCO’s sole discretion. DISCO shall remain fully liable for the acts or omissions of sub-processors.
b. DISCO Sub-processors Added After Effective Date. DISCO will notify Customer in advance of engaging any additional or replacement sub-processor using regular communication means such as email, websites, and portals. If Customer reasonably objects to the addition of a new sub-processor (e.g., such change causes Customer to be non-compliant with applicable Data Protection Laws and Regulations), Customer shall notify DISCO in writing of its specific objections within thirty (30) days of receiving such notification. If Customer does not object within such period, the addition of the new sub-processor and, if applicable, the accession to this DPA shall be considered accepted. If Customer does object to the addition of a new sub-processor and DISCO cannot accommodate Customer’s objection, Customer may terminate the services and software in writing within sixty (60) days of receiving DISCO’s notification.
a. The Personal Data has been collected and transferred to DISCO in accordance with the Data Protection Laws and Regulations.
b. Prior to its transfer to DISCO, the Personal Data has been maintained, retained, secured and protected in accordance with the Data Protection Laws and Regulations.
c. Customer will respond to inquiries from Data Subjects and from applicable regulatory authorities concerning the Processing of the Personal Data, and will alert DISCO of any inquiries from Data Subjects or from applicable regulatory authorities that relate to DISCO’s Processing of the Personal Data.
d. Where required by the Data Protection Laws and Regulations, Customer has a valid lawful basis for the Processing of Personal Data under this DPA.
e. Customer shall be solely responsible and liable for its compliance with the Data Protection Laws and Regulations.
DISCO shall promptly notify Customer if it receives a Data Subject Request and, to the extent applicable, DISCO shall provide Customer with commercially reasonable cooperation and assistance as is necessary for Customer to comply with its obligations under the Data Protection Laws and Regulations in relation to any such Data Subject Request. Customer shall use its best efforts to respond to and resolve promptly all Data Subject Requests which DISCO provides to Customer. Customer shall be responsible for any reasonable costs arising from DISCO’s provision of assistance under this Section. To the extent legally permitted, Customer shall be responsible for any costs arising from DISCO’s provision of such assistance.
a. Confidentiality. DISCO shall execute written agreements with its personnel to maintain the confidentiality of Personal Data, including after the termination of the personnel.
b. Limitation of Access. DISCO shall use commercially reasonable efforts to limit access to Personal Data to personnel who require such access to perform the Agreement.
DISCO will implement appropriate technical, physical, and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing, and the risk of varying likelihood and severity of harm to the Data Subjects. In assessing the appropriate level of security, DISCO shall weigh the risks presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise Processed.
a. Audit Requests. DISCO will provide reasonable information to help Customer to assess DISCO’s compliance with the undertakings in this DPA. To the extent it is not possible to otherwise satisfy an audit obligation mandated by applicable Data Protection Laws and Regulations and subject to Section 8(c), only a legally mandated entity (such as a governmental regulatory agency having oversight of Customer’s operations) may conduct an onsite visit of the facilities used to provide the services. Unless expressly and specifically mandated by Data Protection Laws and Regulations, no audits are allowed within a data center for security and compliance reasons. After conducting an audit under this Section 8 or after receiving a DISCO report under this Section 8, Customer must notify DISCO of the specific manner, if any, in which DISCO does not comply with any of the security, confidentiality, or data protection obligations in this DPA, if applicable. Any information provided by DISCO will be deemed Confidential Information of DISCO.
b. Sub-Processors. Customer may not audit DISCO’s sub-processors without DISCO’s and DISCO’s sub-processor’s prior agreement. Customer agrees its requests to audit sub-processors may be satisfied by DISCO or DISCO’s sub-processors presenting up-to-date attestations, reports or extracts from independent bodies, including without limitation external or internal auditors, DISCO’s data protection officer or IT security personnel, data protection or quality auditors, or other mutually agreed to third parties, or certification by way of an IT security or data protection audit. Onsite audits at sub-processors’ premises may be performed by DISCO acting on behalf of Customer.
c. Audit Process. Unless required by Data Protection Laws and Regulations, Customer may request a summary audit report(s) or audit DISCO no more than once annually. Customer must provide at least six (6) weeks’ prior written notice to DISCO of a request for summary audit report(s) or request to audit. The scope of any audit will be limited to DISCO’s policies, procedures and controls relevant to the protection of Customer’s Personal Data as defined in Appendix 1 to Schedule 2 of this DPA. Subject to Section 8(b), all audits will be conducted during normal business hours, at DISCO's principal place of business or other DISCO location(s) where Personal Data is accessed, processed or administered, and will not unreasonably interfere with DISCO's day-to-day operations. An audit will be conducted at Customer’s sole cost and by a mutually agreed upon third party who is engaged and paid by Customer, and is under a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in the Agreement, obligating it to maintain the confidentiality of all DISCO Confidential Information and all audit findings. Before the commencement of any such on-site audit, DISCO and Customer shall mutually agree upon the timing, scope, and duration of the audit. DISCO will reasonably cooperate with the audit, including providing auditor the right to review but not to copy DISCO security information or materials during normal business hours. Customer shall, at no charge, provide to DISCO a full copy of all findings of the audit.
Customer authorises DISCO to transfer Personal Data outside of the EEA and the UK (a “Data Transfer”) in connection with the provision of the services under the Agreement, provided that DISCO shall implement appropriate safeguards for any such Data Transfer, as required by the Data Protection Laws and Regulations. This Agreement incorporates the UK Controller to Processor Model Clauses at Schedule 2 and the EU Controller to Processor Model Clauses approved pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 at Schedule 3. In the event that either the UK Controller to Processor Model Clauses or the EU Controller to Processor Model Clauses cease to be recognised as a lawful instrument for conducting Data Transfers, DISCO may instead implement alternative appropriate safeguards recognised under applicable Data Protection Laws and Regulation for such Data Transfers. Such appropriate safeguards shall become effective on notification by DISCO to Customer of their adoption, notwithstanding any term of the Agreement which may otherwise purport to restrict DISCO’s ability to amend the Agreement or this DPA.
Each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the limitation of liability provisions of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, DISCO’s total liability for all claims from the Customer arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA.
The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws and Regulations or the terms of the EU Controller to Processor Model Clauses (to the extent applicable).
Effective date: 27 September 2021
1. Processing Generally.
a. Objective and Duration. The objective of Processing of Personal Data by DISCO is the performance of the Services pursuant to the Agreement.
b. Instructions. Customer’s complete and final documented instructions for the Processing of Personal Data are as set forth in Section 2c of the DPA. Any additional or alternate instructions must be agreed upon in a writing executed by authorized representatives of each party. For the purposes of Clause 5(a) of the UK Standard Contractual Clauses and Clause 7.2 of the EU Standard Contractual Clauses, the following is deemed an instruction by the Customer to Process Personal Data: (i) Processing in accordance with this Addendum and the Agreement; and (ii) Customer’s use of the Service’s features and functionality.
c. Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the UK Standard Contractual Clauses and Clause 7.6.1 and Clause 15.4 of the EU Standard Contractual Clauses shall be provided by DISCO only upon Customer’s request. Additionally, backups and monitoring data will be deleted per DISCO’s data retention policy.
d. Termination. The parties agree that in the event Customer terminates the Agreement and/or this Addendum as described in Clause 5(a) and Clause 5(b) of the UK Standard Contractual Clauses and Clause 15.2 and Clause 15.3 of the EU Standard Contractual Clauses, Customer shall remain liable for all fees set forth on any outstanding Order Form(s), regardless of whether such fees have been invoiced or are yet payable at the time of such termination.
2. Data Sub-Processors. The parties agree that Customer’s consent to the Data Sub-processors described in Clause 5(h) and Clause 11 of the UK Standard Contractual Clauses shall be carried out in accordance with Section 3 of the DPA. The parties agree that the copies of the Data Sub-processor agreements that must be provided by DISCO to Customer pursuant to Clause 5(j) of the UK Standard Contractual Clauses may have all commercial information, or clauses unrelated to the UK Standard Contractual Clauses or their equivalent, removed by DISCO beforehand; and, that such copies will be provided by DISCO, in a manner to be determined in its discretion, only upon written request by Customer.
3. Security Incident Response and Notification. The parties agree that the notification described in Clause 5(d)(ii) of the UK Standard Contractual Clauses shall be carried out in accordance with Section 2(f) of the DPA.
4. Data Subject Rights. The parties agree that the assistance described in Clause 5(d)(iii) of the UK Standard Contractual Clauses and Clause 9 of the EU Standard Contractual Clauses shall be carried out in accordance with Section 5 of the DPA.
5. Security Audits. The parties agree that the audits described in Clause 5(f) and Clause 12(2) UK of the Standard Contractual Clauses and Clause 7.10.3 and 7.10.4 of the EU Standard Contractual Clauses shall be carried out in accordance with Section 8 of the DPA.
6. Conflict. Except as specifically set forth in this Addendum, the terms and provisions of the Agreement shall remain unmodified and in full force and effect. In the event of a conflict between the terms and conditions of the EU Standard Contractual Clauses or the UK Standard Contractual Clauses and the Agreement or the DPA, the conflict shall be resolved in the following order of precedence: (i) EU Standard Contractual Clauses or UK Standard Contractual Clauses (as applicable), (iii) the DPA, and (iv) the Agreement.
7. Liability. The parties agree that in respect of any liability arising under Clause 11.1, Clause 11.4, Clause 11.5 or Clause 11.6 of the EU Standard Contractual Clauses, Section 10 of the DPA shall apply.
Schedule 2
UK Standard Contractual Clauses (processors)
WHEREAS:
The parties have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘Commissioner’ shall have the same meaning as in the UK GDPR;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the UK; and
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the Commissioner) and does not violate the applicable data protection law;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not covered by adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the Commissioner if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the Commissioner with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the Commissioner;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the Commissioner;
(b) to refer the dispute to the UK courts.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the Commissioner if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the Commissioner has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Clauses shall be governed by the law of the country of the United Kingdom in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from (i) making changes permitted by Paragraph 7(3) & (4) of Schedule 21 Data Protection Act 2018; or (ii) adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the country of the UK where the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the Commissioner.
Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
The data exporter is the legal entity that is entering into the Agreement with the data importer.
Data importer
The data importer is (please specify briefly your activities relevant to the transfer):
CS Disco, Inc. provides to practising legal professionals a suite of software and solutions including DISCO Ediscovery, DISCO Case Builder, and DISCO Review, which process personal data upon the instructions of the data exporter strictly in accordance with the terms of the Agreement with the data exporter.
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
∙ Partners of data exporter
∙ Employees of data exporter
∙ End-clients of data exporter
∙ Consultants or expert witnesses retained by data exporter or data exporter’s end-clients
∙ Data exporter’s users authorized by data exporter under the terms of the Agreement to use the software and services
Categories of data
The personal data transferred concern the following categories of data (please specify):
∙ Identity details (e.g. name, job title, organization)
∙ Contact details (e.g. telephone, e-mail)
∙ Planning and management data
∙ User-provided content
∙ Personal Data contained in data received from Customer’s end-client
Data exporter may specify further types of personal data or categories of data subjects in the Agreement, or notify data importer of any additional types or categories from time to time.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Data exporter may at its own discretion submit, without the knowledge of the data importer, data that includes personal data relating to racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic information, or health or sex-life information solely for the purpose of using data importer’s software and services. Data importer does not otherwise collect or store such special categories of personal data as a matter of course in its operations and does not require or request its customers to supply it in the course of using data importer’s software or services.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of processing of personal data by data importer is to provide support and troubleshooting services where requested by the data exporter.
Appendix 2
to the UK Standard Contractual Clauses
This Appendix forms part of the 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 annually certifies and complies with ISO 27001, 27017, 27018, and SOC 2, Type II standards, and is audited annually by an independent audit firm to those standards. At data exporter’s request, and provided that the data exporter has executed an NDA with data importer, data importer will provide data exporter with copies of applicable ISO and SOC audit reports so that data exporter can review the descriptions of the technical and organizational security measures implemented by data importer in accordance with Clauses 4(d) and 5(c).
Schedule 3
EU Controller to Processor Model Clauses
1 PURPOSE AND SCOPE
1.1 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.
1.2 The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
1.3 These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
1.4 The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
2 EFFECT AND INVARIABILITY OF THE CLAUSES
2.1 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.
2.2 These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
3 THIRD PARTY BENEFICIARIES
3.1 Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 8.2.1, 8.10.1, 8.10.3, 8.10.4 and 8.10.5;
(ii) Clause 9.1, 9.3, 9.4, and 9.5;
(iii) Clause 12.1, 12.4 and 12.6;
(iv) Clause 13;
(v) Clause 15.1.3, 15.1.4 and 15.1.5;
(vi) Clause 16.5;
(vii) Clause 18.1 and 18.2.
3.2 Clause 3.1 is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
4 INTERPRETATION
4.1 Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
4.2 These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
4.3 These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
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.
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.
7 [INTENTIONALLY OMITTED]
8 DATA PROTECTION SAFEGUARDS
8.1 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.
8.2 Instructions
8.2.1 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.
8.2.2 The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.3 Purpose limitation
8.3.1 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.
8.4 Transparency
8.4.1 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.
8.5 Accuracy
8.5.1 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.
8.6 Duration of processing and erasure or return of data
8.6.1 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 14.5 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 14.1.
8.7 Security of processing
8.7.1 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.
8.7.2 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.
8.7.3 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.
8.7.4 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.
8.8 Sensitive data
8.8.1 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.
8.9 Onward transfers
8.9.1 The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.10 Documentation and compliance
8.10.1 The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
8.10.2 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.
8.10.3 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 noncompliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
8.10.4 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.
8.10.5 The Parties shall make the information referred to in Clauses 8.10.2 and 8.10.3, including the results of any audits, available to the competent supervisory authority on request.
9 USE OF SUB PROCESSORS
9.1 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 one month 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.
9.2 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 8.9. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
9.3 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.
9.4 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.
9.5 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.
10 DATA SUBJECT RIGHTS
10.1 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.
10.2 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.
10.3 In fulfilling its obligations under Clauses 10.1 and 10.2, the data importer shall comply with the instructions from the data exporter.
11 REDRESS
11.1 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.
11.2 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.
11.3 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:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
11.4 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.
11.5 The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
11.6 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.
12 LIABILITY
12.1 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.
12.2 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.
12.3 Notwithstanding Clause 12.2, 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.
12.4 The Parties agree that if the data exporter is held liable under Clause 12.3 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.
12.5 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.
12.6 The Parties agree that if one Party is held liable under Clause 12.5, 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.
12.7 The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
13 SUPERVISION
13.1 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.
13.2 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.
14 LOCAL LAWS AND PRACTICES AFFECTING COMPLIANCE WITH THE CLAUSES
14.1 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.
14.2 The Parties declare that in providing the warranty in Clause 14.1, they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
14.3 The data importer warrants that, in carrying out the assessment under Clause 14.2, 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.
14.4 The Parties agree to document the assessment under Clause 14.2 and make it available to the competent supervisory authority on request.
14.5 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 Clause 14.1, 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 Clause 14.1.
14.6 Following a notification pursuant to Clause 14.5, 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 16.4 and 16.5 shall apply.
15 OBLIGATIONS OF THE DATA IMPORTER IN CASE OF ACCESS BY PUBLIC AUTHORITIES
15.1 Notification
15.1.1 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:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
15.1.2 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.
15.1.3 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.).
15.1.4 The data importer agrees to preserve the information pursuant to Clauses 15.1.1 to 15.1.3 for the duration of the contract and make it available to the competent supervisory authority on request.
15.1.5 Clauses 15.1.1 to 15.1.3 are without prejudice to the obligation of the data importer pursuant to Clause 14.5 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
15.2.1 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 14.5.
15.2.2 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.
15.2.3 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.
16 NON-COMPLIANCE WITH THE CLAUSES AND TERMINATION
16.1 The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
16.2 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 14.6.
16.3 The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to Clause 16.2 and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
16.4 Personal data that has been transferred prior to the termination of the contract pursuant to Clause 16.3 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.
16.5 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.
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 laws of Ireland.
18 CHOICE OF FORM AND JURISDICTION
18.1 Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
18.2 The Parties agree that those shall be the courts of Ireland.
18.3 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.
18.4 The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX
Annex I.A and I.B
See Appendix 1 to Schedule 2 above. The competent supervisory authority shall be the supervisory authority of the EU Member State in which the data exporter is established.
Annex II
See Appendix 2 to Schedule 2 above.
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