B2B data protection addendum

BLACKHAWK NETWORK, INC.
DATA PROCESSING ADDENDUM
BHN AS VENDOR/DATA PROCESSOR

This Data Processing Addendum ("DPA") is entered into as of the effective date of the agreement that incorporates it ("Effective Date") and is between the customer that a Blackhawk entity provides services to as identified in the agreement that incorporates this DPA (“Customer”) and the Blackhawk entity identified in the agreement that incorporates this DPA (“Vendor”). This DPA forms a part of the agreement that incorporates it as amended, supplemented, or replaced from time to time, and including any order form, statement of work, purchase order, or other agreement describing services to be provided (hereinafter, collectively, the “Agreement”).

This DPA reflects the parties’ agreement with respect to Services provided by the Vendor which may include the Processing of Personal Data in accordance with applicable Data Protection Laws, and this DPA is intended to supplement (and not replace) any Processing terms contained in the Agreement. In the event of any conflict between the terms of this DPA and the terms of the Agreement, this DPA shall control with respect to Processing of Personal Data.

1 DEFINITIONS

Capitalized terms in this DPA shall have the same meaning they do in the Agreement, unless otherwise defined in context or as provided for below.

1.1 "Affiliate" means, with respect to a party, an entity that owns or controls, is owned or controlled by, or is under common control or ownership with that party. For purposes of this DPA, “control” is defined as the possession, directly or indirectly, of the power to direct the management and policies of an entity, for example, through ownership of voting securities or other equity interest, representation on its board of directors or governing body, by contract, or otherwise.

1.2 "Business Purpose" means the use of personal information for the business’s or a service provider’s operational purposes, or other notified purposes, provided that the use of personal information shall be reasonably necessary and proportionate to achieve the operational purpose for which the personal information was collected or processed or for another operational purpose that is compatible with the context in which the personal information was collected.

1.3 "CCPA” means the California Consumer Privacy Act of 2018, as amended, (enrolled at California Civil Code, Title 1.81.5 §§ 1798.100-1798.199), including associated regulations (to be published at California Code of Regulations, Title 11, Division 1, Chapter 20, §§ 999.300-999.341), and inclusive of any public findings and associated guidance issued by California regulators.

1.4 "Customer’s Data Subject” means a Data Subject whose primary business or transactional relationship is with the Customer, notwithstanding any transactions performed by the Vendor on behalf of the Customer as part of the Services provided under the Agreement. It is understood by the Customer that a Data Subject may also have certain transactional relationships directly with the Vendor, or other customers of the Vendor, as a result of services provided outside of the scope of the Agreement, and those relationships (and any Personal Data arising therefrom) shall not be considered as falling within this definition.

1.5 "Data Controller” or “Controller” means the legal person or entity which alone, or jointly with others, determines the purposes and means of Processing of Personal Data, inclusive of the definition of “Business” as provided in California Civil Code §1798.140 (c), if applicable.

1.6 "Data Processor” or “Processor” means the person or entity that Processes Personal Data on behalf of a Controller (which is the Customer as contemplated by the Agreement and this DPA). The term Data Processor shall also be inclusive of the meaning of “Service Provider” as provided in California Civil Code §1798.140 (v), if applicable.

1.7 "Data Protection Law(s)” means all laws and regulations applicable to the Services, including as applicable and without limitation, laws and regulations of the European Union (“EU”), the European Economic Area (“EEA”) and their member states, the United Kingdom (“UK”), the United States of America (“US”) and of the several States (including California), and any other sovereign nation or administrative subdivision thereof, whose laws or regulations may be applicable to the processing of Personal Data under this Agreement, and all national legislation reflecting, implementing, or supplementing the foregoing, as updated, amended, or replaced from time to time.

1.8 "Data Subject” is an identified or identifiable natural person.

1.9 "Data Subject Request” means the process by which Data Subjects may exercise their rights under Data Protection Laws to: (1) request from the Controller the Personal Data being Processed by a Controller or its Processors; (2) request deletion of Personal Data being Processed by a Controller or its Processors; or (3) make another request relating to Personal Data permitted by applicable Data Protection Laws.

1.10 "GDPR” means the General Data Protection Regulation (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, inclusive of any associated regulations and public guidance issued by EU or member state regulators or supervisory authorities, including the European Data Protection Board.

1.11 "HIPAA” and “HITECH” mean the Health Insurance Portability and Accountability Act of 1996 and its associated regulations (HIPAA), inclusive of 45 CFR §§ 160, 162 and 164, Standards for Privacy of Individually Identifiable Health Information, Final Rule (The Privacy Rule) and Health Insurance Reform: Security Standards, Final Rule (The Security Rule); and, the Health Information Technology for Economic and Clinical Health Act (HITECH) enacted as part of the American Recovery and Reinvestment Act of 2009, inclusive of the final HIPAA rule that implements a number of provisions of HITECH (the “Omnibus Rule”) at 45 CFR Parts 160 and 164.

1.12 "Information Security Program” means a comprehensive, industry-based program that applies to the governance of Vendor information assets, regardless of form or format, used in support of the business and information systems, including systems managed or hosted by third parties on behalf of Vendor.

1.13 "Personal Data” means any information that identifies or relates to an identified or identifiable natural person or device used by such an individual, including without limitation, a name, phone number, email address, physical address, identification number, location data, purchase history, or online identifier. This term includes “personal data” and “personal information” as those terms are defined under applicable Data Protection Laws.

1.14 "Personal Data Breach” means any actual breach of security that has led to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data of the Customer’s Data Subject which is transmitted, stored, or otherwise processed by Vendor under this Agreement.

1.15 "Processing” or “Process” means any operation performed on Personal Data, whether manually or automatically, such as collecting, using, storing, transmitting, or sharing.

1.16 "Sale" means exchanging for monetary consideration, and shall be inclusive of the meaning provided in California Civil Code §1798.140 (t), as applicable.

1.17 "Service Provider” means a person or entity that provides services to Vendor, and shall be inclusive of the meaning provided in California Civil Code §1798.140 (v), as applicable.

1.18 "Services” shall have the meaning provided for in the Agreement.

2. PROCESSING OF PERSONAL DATA

2.1 Roles and Responsibilities. Customer is the Data Controller and Vendor is the Data Processor. Vendor is a Service Provider to Customer. Customer authorizes: (a) Vendor to Process the Personal Data of the Customer’s Data Subjects in accordance with the terms of this DPA and the Agreement; (b) Vendor to appoint any Vendor Affiliate as a sub-processor; and, (c) Vendor (and any Vendor Affiliate) to appoint third-party sub-processors to support the performance of the Services, provided that such appointments shall be subject to the terms of this DPA, including Section 3 below. Such authorization shall not be deemed to negate the Customer’s status as Data Controller nor shall it constitute any relinquishment of the Customer’s final authority over the purposes or means of Processing.

2.2 Vendor Processing Activities Vendor agrees that it shall: (a) only process Personal Data to provide the Services in accordance with the Agreement and pursuant to Customer's written instructions as set forth in this DPA; and, (b) take reasonable steps to limit Personal Data access to authorized personnel who are under written obligations of confidentiality. Vendor further agrees that it shall comply with the Data Protection Laws applicable to Vendor in the provision of Services under the Agreement and this DPA.

2.3 Customer Processing Activities. Customer may in the course of its use of the Services transmit Personal Data to Vendor. Customer shall have sole responsibility for the accuracy, quality, and legality of that Personal Data, including the means by which Customer or any relevant third-party acquired that Personal Data. Unless specifically identified and agreed in a written amendment to this DPA, Customer warrants that it shall not transmit or store within the Services any prohibited Personal Data except as explicitly set forth in the Agreement. Customer also warrants that it has provided all necessary notices to the relevant Data Subjects and obtained appropriate permission, consent, or other valid authorization for transmission to and processing of Personal Data (including cross-border transfers) by Vendor, as may be required by applicable Data Protection Laws.

2.4 Details of Processing Activities. The nature and extent of Personal Data processed by Vendor is directly related to the particular Services requested by the Customer, and the Agreement and this DPA specify the Customer’s requirements applicable thereto. Because the Customer has specified the requirements applicable to the processing through the Agreement and this DPA, the purpose and means of processing shall at all times be deemed to have been determined solely by Customer. Customer agrees that as applicable, Vendor may use a Customer privacy policy in connection with the Services, including on any hosted website or online service provided for Customer.

2.5 Protected Health Information and Electronic Protected Health Information. Customer warrants that the Personal Data to be Processed pursuant to the Agreement shall not contain Protected Health Information or Electronic Protected Health Information as those terms are defined under HIPAA and HITECH. The Customer warrants that the services requested are not within the scope of any Covered Entity status and that the Vendor is not a Business Associate as defined under HIPAA and HITECH.

2.6 Business Purpose Only; No Sale. The Personal Data disclosed to the Vendor by the Customer is provided to the Vendor solely for a Business Purpose, consistent with California Civil Code §1798.140 (d), as applicable. Vendor will not engage in any Sale of Personal Data.

3. SUB-PROCESSING

Vendor shall take commercially reasonable steps to require that any sub-processor it engages to provide Vendor Services on its behalf in connection with this DPA does so only on the basis of a written contract which imposes on such sub-processor terms that are substantially as protective of Personal Data as those imposed on Vendor in this DPA. Vendor agrees to be liable for the acts or omissions of its third-party sub-processors to the same extent as Vendor would be liable if performing the services of the sub-processors under the terms of the Agreement.

4. DATA SUBJECT ACCESS REQUESTS

4.1 Receipt of Data Subject Request by Vendor.In the event Vendor receives a Data Subject Request from Customer’s Data Subject, Vendor shall not respond to such Data Subject Request without Customer’s prior written consent except to: (a) confirm receipt; (b) advise that such request relates to Customer; and (c) provide a referral to the Customer.

4.2 Vendor Assistance to Customer for Data Subject Requests. To the extent Customer does not have the ability to address a Data Subject Request using the functionalities available to Customer within the Vendor Service, Vendor shall, upon Customer’s request, provide reasonable assistance to facilitate obtaining such information as may be relevant to the Data Subject Access Request, to the extent Vendor is able to provide such information consistent with applicable law. Customer shall notify Vendor of any required assistance via email sent to the Blackhawk Network Global Privacy Office at the email address designated in the Agreement.

4.3 Customer Responsibilities. Customer shall be responsible for all interactions and communications with the Customer’s Data Subject (notwithstanding the confirmation notice described in Section 4.1 above), and shall solely be responsible for verification of the identity of the Data Subject, or their authorized representative, and transmission of any Personal Data provided to the Data Subject pursuant to their Data Subject Access Request. Vendor shall not be responsible for verification of requests, or for delivery of Personal Data to Data Subjects, unless explicitly agreed to in writing.

4.4 Time Frame for Assistance. Should Customer require assistance pursuant to Section 4.2, Vendor shall provide a substantive response within a commercially reasonable period of time, but no event more than ten (10) business days after receipt, provided that such notification is complete insofar as Customer has provided, via the notification process in Section 4.2, all relevant information required in order that the Vendor may identify the appropriate records. If the Personal Data provided in response to such request for assistance includes any sensitive information, Vendor shall notify Customer and the parties shall determine a mutually agreeable process for securely transmitting that information (e.g., encrypted file, secure FTP, encrypted email, etc.).

5. DELETION OR REMOVAL OF PERSONAL DATA

5.1 Upon Termination of Service. Upon termination of the Service, Customer may request that Vendor delete any Customer Data, including any Personal Data contained therein, from the Vendor environment as provided in the Agreement. Unless otherwise required to retain such data by applicable laws, Vendor shall make reasonable efforts to delete all data from live systems and to prevent such data from being further Processed. Customer acknowledges that Vendor may still retain certain Personal Data in offline archives, “cold storage” systems, or physical or virtual system backups (collectively “Archived Data”), and that Vendor shall not be obligated to delete Archived Data, provided that Vendor shall promptly delete any Customer Data if such data is retrieved from its archived state and restored to live systems. Customer can request data deletion from Archived Data, and if Vendor accommodates that request, Customer shall bear all administrative and labor costs associated with the process of retrieval and disposal, including all third-party fees and any other costs reasonably incurred by the Vendor (billed at the Vendor’s then-current standard professional services rates).

5.2 Upon Data Subject Request. In the event Customer has received a valid Data Subject Request for data deletion from Customer’s Data Subject, Vendor shall undertake reasonable efforts to comply with such request to the extent permitted under applicable law. Customer acknowledges that Vendor may utilize cryptographic or other industry-standard methods to de-identify or anonymize/pseudonymize any Personal Data associated with a record but may still retain certain non-Personal Data or aggregate data associated with a particular transaction or record. Customer agrees that, to the extent such Personal Data has been removed from processing or been de-identified consistent with applicable law, regulation, and industry best practice, such data shall for purposes of this DPA be considered deleted or otherwise removed from the defined scope of Personal Data under applicable Data Protection Laws.

5.3 Data Retention and Disposal Policy. Vendor maintains an appropriate data retention and disposal/deletion policy, and associated retention schedule, including with regard to all Personal Data that is subject to this DPA.

5.4 Ongoing Obligations. The terms of this DPA, including the Security Terms, shall survive the Agreement and shall be fully enforceable with regard to the Personal Data (including Archived Data) provided to the Vendor under the Agreement and this DPA until such time as the Personal Data has been destroyed, deleted, or otherwise irreversibly rendered incapable of identifying any individual.

6. INSPECTIONS AND AUDIT

6.1 Inspection and Audit. Unless otherwise provided for in the Agreement, Customer may exercise its right of inspection and audit under Data Protection Laws by requesting, and Vendor shall comply by providing: (a) a certificate not older than 18 months by a registered and independent external auditor demonstrating that Vendor’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard (e.g., ISO 27001 or SOC 1 Type 2 reports); or, (b) such additional information in Vendor's possession or control when requested by a government regulator or data protection authority, with regard to the data processing activities carried out by Vendor under this DPA.

6.2 Additional Assistance. In the event that Customer is entitled under Data Protection Laws to request additional information pursuant to 6.1(b) above, or if the Customer makes additional requests for assistance pursuant to the reasonable request of their own customer, such further information (including any on-site inspections) shall be provided, however the Vendor, taking into account the resources and time required to fulfill the additional requests, reserves the right to invoice the Customer on a time and materials basis for any activities necessary for the preparation of such information (billed at the Vendor’s then-current standard professional services rates). If Vendor anticipates the need to invoice, Vendor shall notify Customer in advance of undertaking any work and Customer and Vendor shall mutually agree upon the scope, timing and duration of any on-site inspection, including with respect to any third-party inspector selected by the Customer. Customer shall promptly notify Vendor of any non-conformance discovered during the course of an on-site audit. It is acknowledged and agreed that nothing in this DPA shall require the Vendor, its Affiliates or sub-processors, to disclose or provide access to any records, information, or systems which are confidential or proprietary to the Vendor or its sub-processors or their Affiliates.

7. TECHNICAL AND ORGANIZATIONAL MEASURES

Vendor provides the technical and organizational measures required under applicable Data Protection Laws for the security of Personal Data that it processes pursuant to the Agreement, including all such measures as described in Attachment 1.

8. INTERNATIONAL DATA PROCESSING AND TRANSFERS

8.1 International Transfers. The parties agree that Vendor may process Personal Data directly or through the use of sub-processors in jurisdictions around the world, in its reasonable discretion to provide the Services or to perform its rights and responsibilities under the Agreement.

8.2 EU Standard Contractual Clauses. The EU has established standard contractual clauses for use in instances when Personal Data originating in the EU may be transferred outside of the European Economic Area (“EEA”) to any third country that has not been designated as providing adequate levels of protection for Personal Data under law. In the event that the Services require transfers of Personal Data outside of the EEA to a third country that has not been designated as providing adequate levels of protection for Personal Data under the law, the parties agree that Attachment 2 applies. The clauses in Attachment 2 shall be deemed to be amended from time to time to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws, by the EU Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State).

8.3 UK Standard Contractual Clauses. In the event that the Services require transfers of Personal Data outside of the UK to a third country that has not been designated by the UK as providing adequate levels of protection for Personal Data under the law, the parties agree that Attachment 3 applies. The clauses in Attachment 3 shall be deemed to be amended from time to time to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws, by the.

9. PERSONAL DATA BREACH

9.1 Personal Data Breach Notification. Vendor shall notify Customer without undue delay after becoming aware of an actual Personal Data Breach, unless otherwise required by law or requested by applicable law enforcement agencies. Customer shall notify Vendor without undue delay after becoming aware of any Personal Data Breach which might reasonably impact the services provided by the Vendor. Notifications to Blackhawk Network regarding a Personal Data Breach shall be sent via e-mail to the address designated in the Agreement.

9.2 Data Breach Assistance. Where appropriate, and only in respect of any Personal Data relating to the Customer’s Data Subjects which has been the subject of a Personal Data Breach, Vendor shall provide reasonable assistance to Customer to the extent required for Customer to comply with applicable Data Protection Law, which may include assistance in notifying the relevant supervisory authority, and a description of the Personal Data Breach, if customer determines such notification is needed under applicable Data Protection Law. Vendor shall provide to the Customer, to the extent available, the following information: (a) The nature of the Personal Data Breach, the categories of data involved and the numbers of Data Subjects concerned; (b) The name and contact details of Vendor’s Data Protection Officer, Information Security Officer, or other relevant individuals from whom additional information may be obtained; (c) A good faith estimation and description of the risks related to and potential consequences of the Personal Data Breach; (d) A description of the measures taken, or proposed to be taken, to address the Personal Data Breach; and, (e) Any other information required by applicable Data Protection Laws.

9.3 Customer Notification to Vendor. If Customer determines that a Personal Data Breach must be notified to any supervisory authority and/or data subjects and/or the public or portions of the public pursuant to applicable Data Protection Law, Customer may make reasonable efforts to notify Vendor before the communication is made and supply Vendor with copies of any written documentation to be filed with the supervisory authority and of any notifications Customer proposes to make (whether to any supervisory authority, data subjects, the public or portions of the public) which reference Vendor, its security measures and/or role in the Personal Data Breach, whether or not by name. Unless expressly required by applicable Data Protection Law, Customer shall not identify Vendor in any such notification or communication without Vendor’s approval of contents of the notification or communication. Subject to Customer's compliance with any mandatory notification deadlines under applicable Data Protection Law, Customer shall consult with Vendor in good faith and take account of any clarifications or corrections Vendor reasonably requests to such notifications and which are consistent with applicable Data Protection Law and applicable guidance relating to same.

10. INDEMNITY AND LIABILITY

10.1 Indemnity. Vendor agrees to indemnify, defend, and hold harmless Customer against all costs, claims, damages, or expenses incurred by Customer, or for which Customer may become liable due to: (a) gross negligence, willful misconduct, or fraud by Vendor, its Affiliates, or its Sub-Processors, or their respective employees or agents in the course of their obligations under this DPA; or (b) any Personal Data Breach caused by Vendor’s failure to comply with its security obligations in Attachment 1.

10.2 Privacy Related Liability Limitation. Vendor’s liability arising out of or in relation to Data Protection Laws and this DPA (including the Security Terms in Attachment 1 and indemnification obligations above) shall continue to be subject to the general limitations and exclusions of liability as set forth in the Agreement (and not subject to any limitations or exclusions applicable specifically to confidentiality or confidential information in the Agreement).

10.3 Non-Privacy Related Liability. Vendor's liability to Customer arising out of issues not related to Data Protection Law, or any provision of this DPA, shall continue to be subject to the same general limitations and exclusions of liability as set forth under the Agreement.

11. GENERAL

11.1 Confidentiality. The parties may disclose the terms of this DPA to a data protection or regulatory authority (or a relevant data controller) to the extent required by law or regulatory authority, provided however, that any such disclosure shall be limited to the minimum information necessary to satisfy such disclosure requirement.

11.2 Notification of Infringement. Vendor shall inform Customer, as soon as reasonably practicable upon becoming aware, if in Vendor's opinion any instructions provided by Customer under this DPA infringe applicable Data Protection Law(s).

11.3 Personal Data Associated with Customer/Vendor Relationship. The Parties agree that, with respect to any Customer business contact information that may be considered Personal Data, and which is required to administer the Services that are the subject of the Agreement, Vendor shall be considered a Data Controller, and any terms in this DPA relating to obligations of a Data Processor shall not apply thereto.

11.4 Compliance Responsibility. Each party is responsible for ensuring its employees’ and its authorized third-parties’ compliance with these terms.

11.5 Termination This DPA shall terminate simultaneously and automatically with the termination of the relevant Agreement where Customer does not renew or amend the existing relevant Agreement. Notwithstanding the foregoing, Vendor shall continue to treat Personal Data in accordance with the terms herein for so long as Vendor has possession of or access to such Personal Data, consistent with Section 5.4 above.

11.6 Headings. This DPA shall terminate simultaneously and automatically with the termination of the relevant Agreement where Customer does not renew or amend the existing relevant Agreement. Notwithstanding the foregoing, Vendor shall continue to secure Personal Data in accordance with the terms herein for so long as Vendor has possession of or access to such Personal Data, consistent with Section 5.4 above.

11.7 HeadingsThe headings in this DPA are for convenience only and shall not affect the interpretation or construction of this DPA or the Agreement.

Attachment 1

Security Terms

Vendor’s Information Security Program, including its relevant policies, procedures and controls (“Security Program”) shall at all times during the operation of the Agreement and the DPA, include the following physical, technical and administrative measures designed to protect Personal Data from unauthorized access, acquisition, use, disclosure, or destruction:

1. CERTIFICATIONS AND ATTESTATIONS

1.1 Vendor shall establish and maintain sufficient controls to meet the objectives stated in ISO 27001 (or equivalent standards) and any other industry standards applicable to the Vendor, including any mandatory standards required by Data Protection Laws (collectively, the “Industry Standards”) for the information security management system supporting the Services.

1.2 At least once per calendar year, Vendor shall perform an assessment against such Industry Standards (“Assessment”). Upon Customer’s written request, which shall be no more than once per calendar year, Vendor shall provide a summary of the Assessment(s) to Customer. Assessments shall be Confidential Information of Vendor.

2. PHYSICAL SECURITY MEASURES

2.1 Data Center Facilities. Vendor shall have: (i) Physical access restrictions and monitoring that may include a combination of any of the following: multi-zone security, man-traps, appropriate perimeter deterrents (e.g., fencing, berms, guarded gates), on-site guards, biometric controls, CCTV, and secure cages; and, (ii) fire detection and fire suppression systems both localized and throughout the data center floor.

2.2 Systems, Machines, and Devices. Vendor shall have: (i) Physical protection mechanisms; and, (ii) entry controls to limit physical access.

2.3 Media. Vendor shall maintain processes designed for the: (i) Industry standard destruction of sensitive materials before disposition of media; (ii) secure safe for storing damaged hard disks prior to physical destruction; and, (iii) physical or verified logical destruction of all decommissioned hard disks storing Personal Data.

3. TECHNICAL SECURITY MEASURES

3.1 Access Administration. Vendor shall protect access to the Services by Vendor employees and contractors with authentication and authorization mechanisms. User authentication is required to gain access to production and sub-production systems. Access privileges are based on job requirements and are revoked upon termination of employment or consulting relationship. Production infrastructure includes appropriate user account and password controls (e.g., the required use of virtual private network connections, complex passwords meeting recommended standards such as NIST 800-63B, and two-factor authenticated connections) and is accessible for administration.

3.2 Access Controls. Vendor shall implement and maintain appropriate access controls, including, without limitation, limiting access to Personal Data to the minimum number of Vendor personnel who require such access in order to provide the Services. Vendor shall provide its personnel appropriate ongoing training regarding the protection of Personal Data and its Security Program and require such personnel to comply with the Security Program.

3.3 Logging and Monitoring. Vendor’s production infrastructure will maintain logs of activities that are centrally collected, is secured in an effort to prevent tampering, and is monitored for anomalies by a trained security team.

3.4 Firewall System. An industry-standard firewall is installed and will be managed to protect Vendor systems by residing on the network to inspect all ingress connections routed to the Vendor environment.

3.5 Vulnerability Management. Vendor shall conduct periodic independent security risk evaluations to identify critical information assets, assess threats to such assets, determine potential vulnerabilities, and provide for remediation. When software vulnerabilities are revealed and addressed by a vendor patch, Vendor shall obtain the patch from the applicable vendor and apply it within an appropriate time frame in accordance with applicable industry best practices pertaining to then current vulnerability management and security patch management standard operating procedures, and only after such patch is tested and determined to be safe for installation in all production systems.

3.6 Encryption. Vendor shall encrypt, using tools and methods in accordance with Data Protection Laws and Industry Standards, all Personal Data that is, (i) transmitted across any public network or wirelessly; (ii) stored on laptops, other portable devices or storage media; or (iii) stored on any device or media that is housed or transported outside of the physical or logical controls of Vendor.

3.7 Antivirus. Vendor shall apply updates to anti-virus, anti-malware, and anti-spyware software on regular intervals and shall centrally log events for effectiveness of such software.

3.8 Change Control. Changes to platform, applications and production infrastructure are evaluated to minimize risk and are implemented following applicable industry standards, leading best practices, and then-current applicable standard operating procedure.

4. ADMINISTRATIVE SECURITY MEASURES

4.1 Data Center Inspections. For facilities under the direct control of the Vendor, the Vendor shall perform routine reviews at each data center to ensure that it continues to maintain the security controls necessary to comply with the Security Program. For facilities not under the control of the Vendor, the Vendor shall periodically obtain attestations from the facility’s owner/operator regarding the adequacy of physical security measures in place.

4.2 Personnel Security. Vendor shall perform background screening on all employees and all contractors who have access to Personal Data, in accordance with applicable industry standards, leading best practices, then-current applicable standard operating procedures, and subject to applicable law.

4.3 Security Awareness and Training. Vendor shall maintain a security awareness program that includes appropriate training of Vendor personnel on the Security Program. Training shall be conducted at time of hire and periodically throughout employment at Vendor.

4.4 Vendor Risk Management. Vendor shall maintain a vendor risk management program that assesses all vendors that access, store, process or transmit Personal Data for appropriate security controls and business disciplines.

5. OTHER MEASURES

5.1 Vendor shall be responsible for the security of Vendor systems and any Personal Data stored therein. Vendor shall employ and maintain a reasonable comprehensive, written Security Program that complies with, and adequately addresses, all relevant Data Protection Laws and Industry Standards.

5.2 Vendor’s Information Security Program covers all networks, systems, servers, computers, notebooks, laptops, PDAs, tablets, mobile phones, and other devices and media that Process the Personal Data or provide access to Vendor’s systems.

5.3 If during the term of the relevant Agreement, Vendor modifies its Security Program in any manner that materially weakens or compromises the security, confidentiality or integrity of any Personal Data, Vendor shall promptly notify Customer of any such material change.

5.4 Vendor shall conduct risk assessments of, and as necessary review and revise, its information security program at least annually, and whenever there is a material change in Vendor’s business or technology practices that may reasonably affect the privacy, confidentiality, security, integrity or availability of the Personal Data.

5.5 Vendor shall designate an individual as primarily responsible for the development, implementation, maintenance, and management of the Security Program.

Attachment 2

European Union Standard Contractual Clauses
[CONTROLLER TO PROCESSOR]

These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).

If these Clauses are not governed by the law of a Member State, the terms "Member State" and "State" are replaced, throughout, by the word "jurisdiction".

Appendix 3 to these clauses sets forth the relevant terms which apply when and to the extent the Vendor is a data processor, on behalf of its clients, the controllers established in the EU, with respect to the personal data processed hereunder.

STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2
Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3
Third-party beneficiaries

(a)Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9 - Clause 9(a), (c), (d) and (e);

(iv) Clause 12 - Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18 - Clause 18(a) and (b).

(b)Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4
Interpretation

(a)Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5
Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6
Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 - Optional
Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c)The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8
Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

Transfer controller to processor

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union2 (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii)the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), ; including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

Transfer controller to processor

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least 15 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.8 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

Transfer controller to processor

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

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

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

Transfer controller to processor

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law. he 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.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

Transfer controller to processor

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its 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.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

Transfer controller to processor

(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

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.

(b) 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

Transfer controller to processor

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards3;

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. 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

Transfer controller to processor

15.1  Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b)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.

(c) 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.).

(d) 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.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2  Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c)The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

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

Clause 17

Governing law

Transfer controller to processor

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 Ireland.

Clause 18

Choice of forum and jurisdiction

Transfer controller to processor

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of Ireland.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.


1 Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].

2 The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

3 As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

ANNEX I

 

(Annex to the European Union Standard Contractual Clauses)

 

  1. A. LIST OF PARTIES

Data exporter(s):

The Customer, as identified and with the name, address and contact information provided in the Agreement.

Role: Data Controller.

Activities relevant to the data transferred: use of the Services, and processing of Personal Data as described in the Agreement and DPA.

Signature and date: As provided in the Agreement.

Data importer(s):

Blackhawk Network entity, as identified and with the name, address and contact information provided in the Agreement.

Role: Data Processor.

Activities relevant to the data transferred: provision of the Services, and processing of Personal Data as described in the Agreement and DPA.

Signature and date: As provided in the Agreement.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred: as set forth in Agreement and DPA.

Categories of personal data transferred: as set forth in the Agreement and DPA.

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: as set forth in Attachments 1 to the DPA (for safeguards) and in the Agreement and DPA (for sensitive data processed).

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): as set forth in Attachment 3 to the DPA.

Nature of the processing: as set forth in Agreement and DPA.

Purpose(s) of the data transfer and further processing: as set forth in Agreement and DPA.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: as set forth in Agreement and DPA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: as set forth in Agreement and DPA.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13: Ireland, unless otherwise identified in the Agreement.

 

ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

 

 

(Annex to the European Union Standard Contractual Clauses)

 

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.

See Attachment 1 to the DPA for a description of the technical and organization security measures.

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

See the Agreement and DPA for information about the technical and organizational measures taken by sub-processors.

ANNEX III – LIST OF SUB-PROCESSORS
LIST OF SUB-PROCESSORS
(Annex to the European Union Standard Contractual Clauses)

The controller has authorised the use of the following sub-processors: See list referenced in the Agreement.

Attachment 3


UNITED KINGDOM STANDARD CONTRACTUAL CLAUSES

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 sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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;

 

(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 Attachment 3 to the DPA which forms an integral part of the Clauses.

Clause 3. Third-party beneficiary clause

 

3(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.

3(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(3)

The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

3(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:

4(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;

4(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;

4(c)

that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Attachment 1 to the DPA;

4(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;

4(e)

that it will ensure compliance with the security measures;

4(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;

4(g)

to forward any notification received from the data importer or any sub-processor 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;

4(h)

to make available to the data subjects upon request a copy of the Clauses, with the exception of Attachment 1 to the DPA, and a summary description of the security measures, as well as a copy of any contract for sub-processing 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;

4(i)

that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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;

4(j)

that it will ensure compliance with Clause 4(a) to (i).

Clause 5. Obligations of the data importer4

The data importer agrees and warrants:

5(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;

5(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;

5(c)

that it has implemented the technical and organisational security measures specified in Attachment 1 to the DPA before processing the personal data transferred;

5(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;

5(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;

5(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;

5(g)

to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Attachment 1 of the DPA 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;

5(h)

that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

5(i)

that the processing services by the sub-processor will be carried out in accordance with Clause 11;

5(j)

to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6. Liability

 

6(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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

6(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 his sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.

6(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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7. Mediation and jurisdiction

 

7(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.

7(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

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.

8(2)

The parties agree that the Commissioner has the right to conduct an audit of the data importer, and of any sub-processor, 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.

8(3)

The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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, which is England unless otherwise specified in the Agreement.

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. Sub-processing

 

11(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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. 5 Where the sub-processor 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 sub-processor’s obligations under such agreement.

11(2)

The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

11(3)

The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the laws of the country of the UK where the exporter is established.

11(4)

The data exporter shall keep a list of sub-processing 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 termination

 

12(1)

The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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.

12(2)

The data importer and the sub-processor warrant that upon request of the data exporter and/or of the Commissioner, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Additional commercial clauses

The parties are able to add additional commercial clauses.

When including additional commercial clauses, the parties should ensure that these clauses do not in any way:

  • overlap with or contradict the standard contractual clauses;
  • reduce the level of protection which the data importer is required to provide for the personal data; or
  • reduce the rights of data subjects, or make it any more difficult for them to exercise their rights.

 

 


4 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

5 This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

On behalf of the data exporter:

Name (written out in full):

The Customer, as identified and with the name, address and contact information provided in the Agreement.

Position:

Data Controller.

As provided in the Agreement.

Signature:

As provided in the Agreement.

On behalf of the data importer:

Name (written out in full):

Blackhawk Network entity, as identified and with the name, address and contact information provided in the Agreement.

Position:

Data Controller.

As provided in the Agreement.

Other information necessary in order for the contract to be binding (if any):

Signature:

As provided in the Agreement.

Date of the Standard Contractual Clauses: The Effective Date of the Agreement.