42Chat Data Processing Agreement
Valid from July 28, 2022
This 42Chat Data Processing Agreement (“DPA”), that includes the Standard Contractual Clauses adopted by the European Commission, as applicable, reflects the parties’ agreement with respect to the terms governing the Processing of Client Data under the 42Chat Client Terms of Service (the “Agreement”). This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement.
The term of this DPA shall follow the term of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
“CCPA” means the California Consumer Privacy Act of 2018,. Cal. Civ. Code § 1798.100 et seq.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data, and as used in this DPA refers to Client.
“Data Protection Law” means all applicable legislation relating to data protection and privacy, including without limitation the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, and any applicable privacy or data protection laws and regulations of the United States and its states, including without limitation the CCPA, as amended, repealed, consolidated or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Client Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “process”, “processes” and “processed” will be construed accordingly.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller, and as used in this DPA refers to 42Chat.
“Standard Contractual Clauses” means the clauses attached hereto as Exhibit 1 pursuant to the European Commission Implementing Decision (EU) (2021/914) of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant Regulation (EU) 2016/679 of the European Parliament and of the Council.
“Sub-Processors Page” means 42Chat’s Sub-Processors Page available at https://www.42chat.com/sub-processors.
“UK Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses version B1.0 issued by the UK Information Commissioner’s Office under S119A(1) Data Protection Act 2018 and in force as of 21 March 2022, as revised by the UK Information Commissioner’s Office from time to time and attached hereto as Exhibit 2.
2. Details of the Processing
2.a. Categories of Data Subjects. Controller may submit Personal Data to the Chatbot Service, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, but is not limited to Controller’s Contacts and other end users including Controller’s employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects also include individuals attempting to communicate with or transfer Personal Data to the Controller’s end users.
2.b. Types of Personal Data. Client Data (as defined in the 42Chat Client Terms of Service), the extent of which is determined and controlled by the Client in its sole discretion, and other Personal Data such as navigational data (including website usage information), email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by the Controller, or the Controller’s end users, via the Chatbot Service.
2.c. Subject-Matter and Nature of the Processing. The subject-matter of Processing of Personal Data by Processor is the provision of the services to the Controller that involves the Processing of Personal Data. Personal Data will be subject to those Processing activities as may be specified in the Agreement and an Order.
2.d. Purpose of the Processing. Personal Data will be Processed for purposes of providing the services set out, as further instructed by Controller in its use of the Chatbot Services, and otherwise agreed to in the Agreement and any applicable Order.
2.e. Duration of the Processing. Personal Data will be Processed for the duration of the Agreement, subject to Section 4 of this DPA.
3. Controller Responsibility
Within the scope of the Agreement and in its use of the services, Controller shall be solely responsible for complying with its obligations as a Controller under the Data Protection Law the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and its instructions to 42Chat regarding the Processing of Personal Data. For the avoidance of doubt, Controller’s instructions for the Processing of Personal Data shall comply with the Data Protection Law. This DPA is Client’s complete and final instruction to 42Chat in relation to Personal Data and that additional instructions outside the scope of DPA would require prior written agreement between the parties. Instructions shall initially be specified in the Agreement and may, from time to time thereafter, be amended, amplified or replaced by Controller in separate written instructions (as individual instructions).
4. Obligations of Processor
4.a. Compliance with Instructions. The parties acknowledge and agree that Client is the Controller of Personal Data and 42Chat is the Processor of that data. Processor shall collect, process and use Personal Data only within the scope of Controller’s Instructions. If the Processor believes that an Instruction of the Controller infringes the Data Protection Law, it shall immediately inform the Controller without delay. If Processor cannot process Personal Data in accordance with the Instructions due to a legal requirement under any applicable European Union or Member State law, Processor will (i) promptly notify the Controller of that legal requirement before the relevant Processing to the extent permitted by the Data Protection Law; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which Processor is able to comply. If this provision is invoked, Processor will not be liable to the Controller under the Agreement for any failure to perform the applicable services until such time as the Controller issues new instructions in regard to the Processing. 42Chat shall Process Personal Data only for limited and specified purposes as set forth in the Agreement and this DPA, and shall not otherwise: “sell” or “share” Personal Data, as those terms are defined in the applicable Data Protection Law; retain, use, or disclose Personal Data outside of the direct business relationship between Client and 42Chat; or combine Personal Data that 42Chat receives from, or on behalf of, Client with personal information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with a Data Subject. 42Chat will comply with the applicable Data Protection Law and will provide a level of privacy protection for Personal Data consistent with the requirements of the applicable Data Protection Law. 42Chat will promptly notify Client if it makes a determination that it can no longer meet its obligations under this DPA or comply with the Data Protection Law. Client shall have the right, upon notice, including from 42Chat pursuant to the preceding sentence, to take reasonable and appropriate steps to stop and remediate any unauthorized Processing of Personal Data.
4.b. Security. Processor shall take the appropriate technical and organizational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, described under Appendix 2 to the Standard Contractual Clauses. Such measures include, but are not limited to:
4.b.i. the prevention of unauthorized persons from gaining access to Personal Data Processing systems,
4.b.ii. the prevention of Personal Data Processing systems from being used without authorization,
4.b.iii. ensuring that persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to access in accordance with their access rights, and that, in the course of Processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorization,
4.b.iv. ensuring that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified,
4.b.v. ensuring the establishment of an audit trail to document whether and by whom Personal Data have been entered into, modified in, or removed from Personal Data Processing systems,
4.b.vi. ensuring that Personal Data is Processed solely in accordance with the Instructions,
4.b.vii. ensuring that Personal Data is protected against accidental destruction or loss.
Processor will facilitate Controller’s compliance with the Controller’s obligation to implement security measures with respect to Personal Data (including if applicable Controller’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR), by (i) implementing and maintaining the security measures described under Appendix 2, (ii) complying with the terms of Section 4.d. (Personal Data Breaches); and (iii) providing the Controller with information in relation to the Processing in accordance with Section 6 (Audits).
4.c. Confidentiality. Processor shall ensure that any personnel whom Processor authorizes to process Personal Data on its behalf is subject to confidentiality obligations with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
4.d. Personal Data Breaches. Processor will notify the Controller within 48 hours after it becomes aware of any Personal Data Breach affecting any Personal Data. At the Controller’s request, Processor will promptly provide the Controller with all reasonable assistance necessary to enable the Controller to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Controller is required to do so under the Data Protection Law.
4.e. Deletion or Retrieval of Personal Data. Other than to the extent required to comply with Data Protection Law, following termination or expiration of the Agreement, Processor will delete or return all Personal Data (including copies thereof) processed pursuant to this DPA. If Processor is unable to delete Personal Data for technical or other reasons, Processor will apply measures to ensure that Personal Data is blocked from any further Processing.
Controller shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period of time set by Processor, the reasonable measures to return data or to delete stored data. Any additional cost arising in connection with the return or deletion of Personal Data after the termination or expiration of the Agreement shall be borne by Controller.
Processor will enable Controller to delete Personal Data of end users using the functionality of the Chatbot Service.
4.f. Data Protection Impact Assessments and Consultation with Supervisory Authorities. To the extent that the required information is available to Processor and the Controller does not otherwise have access to the required information, Processor will provide reasonable assistance to Controller with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities, which Controller reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to the processing of Personal Data.
5. Data Subject Requests
Processor will enable Controller to respond to requests from Data Subjects to exercise their rights under the applicable Data Protection Law in a manner consistent with the functionality of the Chatbot Service. To the extent that Controller does not have the ability to address a Data Subject request, then upon Controller’s request Processor shall provide reasonable assistance to the Controller to facilitate such Data Subject request to the extent able and only as required by applicable Data Protection Law. Controller shall reimburse Processor for the commercially reasonable costs arising from this assistance.
Processor will provide reasonable assistance, including by appropriate technical and organizational measures and taking into account the nature of the Processing, to enable Controller to respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Law with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law. If such request is made directly to Processor, Processor will promptly inform Controller and will advise Data Subjects to submit their request to the Controller. Controller shall be solely responsible for responding to any Data Subjects’ requests.
Processor shall, in accordance with Data Protection Laws and in response to a reasonable written request by Controller, make available to Controller such information in Processor’s possession or control related to Processor’s compliance with the obligations of data processors under Data Protection Law in relation to its Processing of Personal Data.
Controller may, upon written request and at least 30 days’ notice to Processor, during regular business hours and without interrupting Processor’s business operations, conduct an inspection of Processor’s business operations or have the same conducted by a qualified third party auditor subject to Processor’s approval, which shall not be unreasonably withheld.
Processor shall, upon Controller’s written request and on at least 30 days’ notice to the Processor, provide Controller with all information necessary for such audit, to the extent that such information is within Processor’s control and Processor is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
7.a. Appointment of Sub-Processors. Controller acknowledges and agrees to (a) the engagement as Sub-Processors of Processor’s affiliated companies and the third parties listed on our Sub-Processors Page , and (b) that Processor and Processor’s affiliated companies respectively may engage third-party Sub-Processors in connection with the provision of the Chatbot Service. For the avoidance of doubt, the above authorization constitutes Controller’s prior written consent to the sub-Processing by Processor.
Where Processor engages Sub-Processors, Processor will enter into a contract with the Sub-Processor that imposes on the Sub-Processor the same obligations that apply to Processor under this DPA. Where the Sub-Processor fails to fulfill its data protection obligations, Processor will remain liable to the Controller for the performance of such Sub-Processors obligations.
Where a Sub-Processor is engaged, the Controller must be granted the right to monitor and inspect the Sub-Processor’s activities in accordance with this DPA and the Data Protection Law, including to obtain information from the Processor, upon written request, on the substance of the contract and the implementation of the data protection obligations under the sub-Processing contract, where necessary by inspecting the relevant contract documents.
The provisions of this Section 7 shall mutually apply if the Processor engages a Sub-Processor in a country outside the European Economic Area (“EEA”) not recognized by the European Commission as providing an adequate level of protection for personal data. If, in the performance of this DPA, 42Chat transfers any Personal Data to a Sub-Processor located outside of the EEA, 42Chat shall, in advance of any such transfer, ensure that a legal mechanism to achieve adequacy in respect of that processing is in place.
7.b. Current Processor List and Notification or Objection to New Sub-Processors. If the Processor intends to engage any Sub-Processors other than the companies listed on the Sub-Processors Page , the Processor will notify the Controller by updating the Sub-Processors Page and notifying the Controller of such update be email, and will give the Controller the opportunity to object to the engagement of the new Sub-Processors within 30 days after being notified. The objection must be based on reasonable grounds. If the Processor and Controller are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective date of termination.
8. Data Transfers
Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Data will be transferred to 42Chat in the United States. Processor may access and perform Processing of Personal Data on a global basis as necessary to provide the Chatbot Service, in accordance with the 42Chat Client Terms of Service, and provided that 42Chat shall be responsible for ensuring compliance with any requirements that apply to the cross-border transfer of Personal Data under applicable Data Protection Law.
The Standard Contractual Clauses at Exhibit 1 will apply with respect to Personal Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the Data Protection Law). The Standard Contractual Clauses at Exhibit 1, as modified by the UK Addendum at Exhibit 2, will apply with respect to Personal Data that is transferred outside the United Kingdom, either directly or via onward transfer, to any country not recognized by the United Kingdom as providing an adequate level of protection for Personal Data (as described in the applicable Data Protection Law).
To the extent that Controller or Processor are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently revoked, or held in a court of competent jurisdiction to be invalid, Controller and Processor agree to cooperate in good faith to pursue a suitable alternate mechanism that can lawfully support the transfer.
9. General Provisions
With respect to updates and changes to this DPA, the terms that apply in the “Amendment; No Waiver” section of “Miscellaneous” in the Agreement shall apply.
In case of any conflict, this DPA shall take precedence over the regulations of the Agreement. Where individual provisions of this DPA are invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.
Upon the incorporation of this DPA into the Agreement, the parties indicated in Section 10 below (Parties to this DPA) are agreeing to the Standard Contractual Clauses (where and as applicable) and all appendixes attached thereto. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Exhibit 1, the Standard Contractual Clauses shall prevail.
10. Parties to this DPA
This DPA is an amendment to and forms part of the Agreement. Upon the incorporation of this DPA into the Agreement, Controller and Sciensio, LLC (DBA 42Chat) are each a party to the Agreement and are also each a party to this DPA.
The legal entity agreeing to this DPA as Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Controller.
EXHIBIT 1 - STANDARD CONTRACTUAL CLAUSES
MODULE 2 - CONTROLLER TO PROCESSOR (C2P)
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)for the transfer of personal data to a third country.
- The Parties:
- the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
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.
Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors 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.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 18(a) and (b).
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
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.
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.
- 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.
- 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.
- 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
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 organizational measures, to satisfy its obligations under these Clauses.
- The data importer shall process the personal data only on documented instructions from the data exporter.
The data exporter may give such instructions throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
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 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
- The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
- The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
- The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses or if:
- 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;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.8.9 Documentation and compliance
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
- The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
- The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
- The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
- The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 60 calendar days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
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.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- 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
Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
- 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.
Obligations of the data importer in case of access by public authorities
- The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- 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
- If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
- Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
- The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
- The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
- The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
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.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Poland.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of Poland.
- A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX IA. LIST OF PARTIES
Name: The Client, as defined in the 42Chat Client Terms of Service
Address: The Client’s address, as set out in the Order.
Contact person's name, position and contact details: The Client’s contact details, as set out in the Order and/or as set out in the Client’s 42Chat Account.
Activities relevant to the data transferred under these Clauses: The Data Importer’s provision, and the Data Exporter’s Receipt, of the Data Importer’s services as described in the Agreement and the DPA.
Role (controller/processor): Controller
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: Sciensio, LLC DBA 42Chat
Address: 1192 E Draper Pkwy, #418, Draper, UT 84020 USA
Contact person's name, position and contact details: Attila Horvath, Chief Information Security Officer, Sciensio, LLC, 1192 E Draper Pkwy, #418, Draper, UT 84020 USA
Activities relevant to the data transferred under these Clauses: Those activities set forth in the Agreement and the DPA
Role (controller/processor): ProcessorB. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
You may submit Personal Data in the course of using the Chatbot Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Data importer shall only use this data in accordance with the confidentiality and security measures set forth in the Agreement and the DPA.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
Personal Data will be Processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:
- Storage and other Processing necessary to provide, maintain and improve the Chatbot Services provided to you; and/or
- Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.
Purpose(s) of the data transfer and further processing
Performance of Chatbot and related Services as set forth in the Agreement and the DPA
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Subject to the 'Deletion or Return of Personal Data' section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.C. COMPETENT SUPERVISORY AUTHORITY
For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as competent supervisory authority is either (i) where Client is established in an EU Member State, the supervisory authority responsible for ensuring Client's compliance with the GDPR; (ii) where Client is not established in an EU Member State but falls within the extra-territorial scope of the GDPR and has appointed a representative, the supervisory authority of the EU Member State in which Client's representative is established; or (iii) where Client is not established in an EU Member State but falls within the extra-territorial scope of the GDPR without having to appoint a representative, the supervisory authority of the EU Member State in which the Data Subjects are predominantly located. In relation to Personal Data that is subject to the UK GDPR or Swiss DPA, the competent supervisory authority is the UK Information Commissioner or the Swiss Federal Data Protection and Information Commissioner (as applicable).
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND
ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
42Chat currently observes the security practices described in this Annex II. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, 42Chat may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the protection offered by these practices. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement.
a. Access Control
i. Preventing Unauthorized Product Access
Outsourced processing. 42Chat hosts its Service with outsourced cloud infrastructure providers. Additionally, 42Chat maintains contractual relationships with vendors in order to provide the Service in accordance with our Data Processing Agreement. 42Chat relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.
Physical and environmental security. 42Chat hosts its product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.
Authentication. 42Chat implemented a uniform password policy for its Client Chatbot Services. Client Users who interact with the products via the user interface must authenticate before accessing non-public customer data.
Authorization. Customer data is stored in multi-tenant storage systems accessible to Clients via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of 42Chat’s products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
Application Programming Interface (API) access. Public product APIs may be accessed by requesting a limited lifespan Bearer token using username and password from the API. Accessing all other data exposed by the API is secured by the provided Bearer token and limited to the access rights configured for their corresponding user account.
ii. Preventing Unauthorized Product Use
Access controls. Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.
Static code analysis. Security reviews of code stored in 42Chat source code repositories is performed, checking for coding best practices and identifiable software flaws.
iii. Limitations of Privilege & Authorization Requirements
Product access. A subset of 42Chat’s employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Access is enabled through “just in time” requests for access; all such requests are logged. Employees are granted access by role, and reviews of high risk privilege grants are initiated daily. Employee roles are reviewed at least once every six months.
Background checks. All 42Chat employees undergo a third-party background check prior to being extended an employment offer, in accordance with and as permitted by the applicable laws. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.b. Transmission Control
In-transit. 42Chat makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every customer site hosted on the 42Chat products. 42Chat’s HTTPS implementation uses industry standard algorithms and certificates.
At-rest. 42Chat does not store application user passwords. Passwords used to access external data, APIs, and secure resources are stored encrypted at rest.c. Input Control
Detection. 42Chat designed its infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. 42Chat personnel including security, operations, and support personnel, are responsive to known incidents.
Response and tracking. 42Chat maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, 42Chat will take appropriate steps to minimize product and Customer damage or unauthorized disclosure.
Communication. If 42Chat becomes aware of unlawful access to Customer data stored within its products, 42Chat will: 1) notify the affected Customers of the incident; 2) provide a description of the steps 42Chat is taking to resolve the incident; and 3) provide status updates to the Customer contact, as 42Chat deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the Customer’s contacts in a form 42Chat selects, which may include via email or telephone.d. Availability Control
Infrastructure availability. The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
Fault tolerance. Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.
Online replicas and backups. Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.
42Chat’s products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists 42Chat operations in maintaining and updating the product applications and backend while limiting downtime.
ANNEX III - List of Sub-Processors
42Chat’s Sub-Processors can be found at https://www.42chat.com/sub-processors. If you would like to receive an email when we make updates to Sub-Processors, please send an email request to firstname.lastname@example.org.
UK AND SWISS ADDENDUM TO THE STANDARD CONTRACTUAL CLAUSES
(a) This Addendum amends the Standard Contractual Clauses to the extent necessary so they operate for transfers made by the data exporter to the data importer, to the extent that the UK GDPR or Swiss DPA (as defined in the 42Chat Data Processing Addendum) apply to the data exporter’s processing when making that transfer.
(b) The Standard Contractual Clauses shall be amended with the following modifications:
(i) references to "Regulation (EU) 2016/679" shall be interpreted as references to the UK GDPR or Swiss DPA (as applicable);
(ii) references to specific Articles of "Regulation (EU) 2016/679" shall be replaced with the equivalent article or section of the UK GDPR or Swiss DPA (as applicable);
(iii) references to Regulation (EU) 2018/1725 shall be removed;
(iv) references to "EU", "Union" and "Member State" shall be replaced with references to the "UK" or "Switzerland" (as applicable);
(v) Clause 13(a) and Part C of Annex II are not used and the "competent supervisory authority" shall be the United Kingdom Information Commissioner or Swiss Federal Data Protection Information Commissioner (as applicable);
(vi) references to the "competent supervisory authority" and "competent courts" shall be replaced with references to the "Information Commissioner" and the "courts of England and Wales" or the "Swiss Federal Data Protection Information Commissioner" and "applicable courts of Switzerland" (as applicable);
(vii) in Clause 17, the Standard Contractual Clauses shall be governed by the laws of England and Wales or Switzerland (as applicable); and
(viii) to the extent the UK GDPR applies to the processing, Clause 18 shall be replaced to state: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts”; and
(ix) to the extent the Swiss DPA applies to the processing, Clause 18 shall be replaced to state: “Any dispute arising from these Clauses shall be resolved by the competent courts of Switzerland. The Parties agree to submit themselves to the jurisdiction of such courts”.
1Where 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, 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 2021/915.
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 This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
4As 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.