Archived 3Play Media Data Processing Addendum – September 21, 2022

 

! This is an archived version of our Data Processing Addendum. You can see the current version here.

Last Modified: September 21, 2022

 

Data Processing Addendum

Last updated and effective as of September 21, 2022 (the “DPA Effective Date”).

You can find archived versions of the 3Play Media Data Processing Addendum here.

This Data Processing Addendum (“DPA”), forms part of the 3Play Media Master Services Agreement or the 3Play Media Master Services Agreement (as applicable, the “Agreement”) between 3Play Media, Inc., together with its Affiliates (collectively, “Company” or “3Play”), and the entity that has engaged Company to provide the Services (“Customer”). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement. Each of Company and Customer is referred to in this DPA individually as a “party”, collectively the “parties”. By entering into the Agreement, the parties are deemed to have signed all Attachments, Exhibits, Annexes, Schedules, and Appendices to this DPA where applicable.

 

1. Definitions.

  • a. “Affiliates” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
  • b. “CCPA” means the California Consumer Privacy Act of 2018, together with any regulations promulgated thereunder.
  • c. “Customer Data” means any information Processed by Company solely on behalf of Customer, including without limitation any EU Personal Data, UK Personal Data, and/or California Personal Data.
  • d. “European Data Protection Laws” means, collectively, the GDPR and the UK Data Protection Laws, as applicable.
  • e. “GDPR” means the General Data Protection Regulation (EU) 2016/679.
  • f. “Personal Data” means any information relating to any identified or identifiable individual, household, or device.
  • g. “Processing” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
  • h. “UK” means the United Kingdom.
  • i. “UK Data Protection Laws” means the UK GDPR and the UK’s Data Protection Act 2018 (“UK DPA 2018”).
  • j. “UK GDPR” means the UK equivalent of the GDPR, as defined in section 3(10) (and as supplemented by section 205(4)) of the UK DPA 2018.

2. To the extent Company Processes Personal Data regulated by the GDPR solely on behalf of Customer (“EU Personal Data”), and to the extent Customer is a controller (as defined in the GDPR) and the Company is a processor (as defined in the GDPR) on behalf of Customer with regard to such EU Personal Data, then to the extent required by the GDPR, the Standard Contractual Clauses for the Transfer of Personal Data as set out in European Commission Decision 2021/914/EC (attached hereto as Exhibit A, the “Controller to Processor Standard Contractual Clauses”) will apply to the transfer of such EU Personal Data by Customer to the Company and to the Company’s Processing of such EU Personal Data and the parties hereby agree to comply with such Controller to Processor Standard Contractual Clauses, which are hereby incorporated into the Agreement in their entirety. In the event of a conflict between the Agreement and the Controller to Processor Standard Contractual Clauses, the Controller to Processor Standard Contractual Clauses will control to the extent applicable to such EU Personal Data.

3. To the extent Company Processes EU Personal Data, and to the extent Customer is a processor (as defined in the GDPR) on behalf of a third party with respect to EU Personal Data and the Company is a processor on behalf of Customer with regard to such EU Personal Data, then to the extent required by the GDPR, the Standard Contractual Clauses for the Transfer of Personal Data as set out in European Commission Decision 2021/914/EC (attached hereto as Exhibit B, the “Processor to Processor Standard Contractual Clauses”) will apply to the transfer of such EU Personal Data by Customer to the Company and to the Company’s Processing of such EU Personal Data and the parties hereby agree to comply with such Processor to Processor Standard Contractual Clauses, which are hereby incorporated into the Agreement in their entirety. In the event of a conflict between the Agreement and the Processor to Processor Standard Contractual Clauses, the Processor to Processor Standard Contractual Clauses will control to the extent applicable to such EU Personal Data.

4. To the extent Company Processes Personal Data regulated by the UK Data Protection Laws solely on behalf of Customer (“UK Personal Data”), then, to the extent required by the UK Data Protection Laws, the UK’s ‘International Data Transfer Addendum to the EU Commission Standard Contractual Clauses’ (attached hereto as Exhibit C, the “UK Data Exhibit”) will apply to the transfer of such UK Personal Data by Customer to the Company and to the Company’s Processing of such UK Personal Data and the parties hereby agree to comply with such UK Data Exhibit, which is hereby incorporated into the Agreement in its entirety. In the event of a conflict between the Agreement and the UK Data Exhibit, the UK Data Exhibit will control to the extent applicable to the UK Personal Data.

5. To the extent Company Processes Personal Data regulated by the CCPA solely on behalf of Customer (“California Personal Data”), then, to the extent required by the CCPA, the California Data Exhibit (attached hereto as Exhibit D, the “California Data Exhibit”) will apply to the Company’s Processing of such California Personal Data and the parties hereby agree to comply with such California Data Exhibit, which is hereby incorporated into the Agreement in its entirety. In the event of a conflict between the Agreement and the California Data Exhibit, the California Data Exhibit will control to the extent applicable to the California Personal Data.

6. Customer represents, warrants, and covenants that: (i) it has (and will have) Processed, collected, and disclosed all Customer Data in compliance with applicable law and provided any notice and obtained all consents and rights required by applicable law to enable Company to lawfully Process Customer Data as permitted by the Agreement and/or this DPA; (ii) it has (and will continue to have) full right and authority to make the Customer Data available to Company under the Agreement and this DPA; and (iii) Company’s Processing of the Customer Data in accordance with the Agreement, this DPA, and/or Customer’s instructions does and will not infringe upon or violate any applicable law or any rights of any third party. Customer shall indemnify, defend and hold Company harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Customer’s violation of this Section 6. Notwithstanding anything to the contrary in the Agreement, Customer’s indemnification obligations under this Section 6 shall not be subject to any limitations of liability set forth in the Agreement.

7. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that Company shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as product development and sales and marketing. To the extent any such data is considered personal data (as defined in, and regulated by the European Data Protection Laws), then, to the extent Company is subject to the European Data Protection Laws as a controller (as defined in the European Data Protection Laws), Company is the controller (as defined in the European Data Protection Laws) of such data and accordingly shall Process such data in accordance with the European Data Protection Laws. To the extent any such data is considered personal information (as defined in, and regulated by, the CCPA), then, to the extent Company is subject to the CCPA as a business (as defined in the CCPA), Company is the business (as defined in the CCPA) with respect to such data and accordingly shall Process such data in accordance with the CCPA.

8. This DPA (together with the Agreement), constitutes the entire agreement between the parties and supersedes all prior undertakings and agreements between the parties, whether written or oral, with respect to the subject matter of this DPA. Company reserves the right, in its sole discretion, to change, modify, replace, add to, supplement or delete any terms and conditions of this DPA at any time by posting an updated version of this DPA on this webpage and providing written notice by email or within Company’s customer-facing application.

Exhibit A

STANDARD CONTRACTUAL CLAUSES (MODULE 2 – CONTROLLER TO PROCESSOR)

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.

[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, 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.

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 8.1(b), 8.9(a), (c), (d) and (e);

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

(iv)      Clause 12(a), (d) and (f)

(v)       Clause 13;

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

(vii)     Clause 16(e);

(viii)    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

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 organizational measures, to satisfy its obligations under these Clauses.

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 organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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 organizational 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 authorized 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 Union ([2]) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

  • (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 defense 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.

[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.

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

  • (a) The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 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. (3) 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 fulfill 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.

[3] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

Clause 10

Data subject rights

  • (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 authorized 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 organizational 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 authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
  • (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, organization 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.
  • (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

  • (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

  • (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 behavior 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

  • (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 authorizing 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 authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (4);
    • (iii) any relevant contractual, technical or organizational 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 organizational 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.

[4] 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.

Clause 15

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

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 minimization

  • (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

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 Ireland.

Clause 18

Choice of forum and jurisdiction

  • (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.

 

APPENDIX

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A. LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

  1. Name: Customer
    Address: The address specified in Customer’s Services account or order form.
    Contact person’s name, position and contact details: The billing contact specified in Customer’s Services account or order form.
    Activities relevant to the data transferred under these Clauses: Receipt of the Services as described in the Agreement.
    Signature and date:
    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]

  1. Name: 3Play Media
    Address: 77 N Washington St Floor 2, Boston, MA 02114
    Contact person’s name, position and contact details: Asya Calixto, General Counsel, [email protected]
    Activities relevant to the data transferred under these Clauses: Provision of the Services as described in the Agreement.
    Signature and date:
    Role (controller/processor): Processor.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

  • Representatives of the data exporter.
  • Individuals whose data is contained in Source Materials as further specified in the Agreement.

Categories of personal data transferred

  • Representatives of the data exporter:
    • Name, postal address, email address, and, if applicable, confirmation of authentication from Facebook.
  • Individuals whose data is contained in Source Materials:
    • Any personal data uploaded to the 3Play Media Portal or otherwise provided to the data importer by the data exporter and its representatives, on behalf of the data exporter and/or its customers and any other third party for whom the data exporter submits materials for use in connection with the Services, including data contained in videos, content, files, data and other materials.

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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Any sensitive data included in videos, content, files, data and other materials uploaded to the 3Play Media Portal or otherwise provided by the data exporter and/or its representatives, the extent of which is determined and controlled by the data exporter in its sole discretion, including, but not limited to: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation, or data relating to criminal convictions or offenses.

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

Continuous.

Nature of the processing

The personal data will be subject to basic processing, which may include without limitation collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing Services to the data exporter in accordance with the terms of the Agreement.

Purpose(s) of the data transfer and further processing

Provision of the Services by the data importer to the data exporter.

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

The duration of the processing under these Clauses shall continue as long as data importer carries out personal data processing operations on behalf of data exporter or until the termination of the Agreement (and all personal data has been returned or deleted in accordance with these Clauses).

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

Personal data will be transferred to subprocessors in order for the data importer to provide the Services to the data exporter. The nature of the processing by such subprocessors will be as follows: the personal data will be subject to basic processing, which may include without limitation collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing Services to the data exporter in accordance with the terms of the Agreement. The duration of the processing by such subprocessors shall continue as long as such subprocessors carry out personal data processing operations on behalf of the data importer.

C. COMPETENT SUPERVISORY AUTHORITY

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

The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.

 

 

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

EXPLANATORY NOTE:

The technical and organizational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Description of the technical and organizational 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. 

For transfers to (sub-) processors, also describe the specific technical and organizational 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.

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk, as follows:

1. Pseudonymization: Pseudonymization is a technical and organizational measure that can be implemented by 3Play Media as follows:

  • encryption of additional information for identification
  • management and documentation of differentiated authorizations concerning additional information for identification

2. Measures for encryption: Where required by law:

  • encryption of laptops
  • encryption of files
  • encryption of systems/plants
  • encrypted storage of passwords
  • secured data sharing (e.g. SSL, FTPS, TLS)
  • secured WLAN

3. Measures to ensure confidentiality

  • a. Measures which ensure that unauthorized persons do not have access:
    • access control system, document reader (magnetic / chip card)
    • door protections (electric door opener, number lock, etc.)
    • safety doors / windows
    • key management / documentation of key assignment
    • protection of facilities, guards
    • alarm system
    • video surveillance
    • special protective measures for the server room
    • special protective measures for storage of back-ups and/or other data carriers
    • employee and authorization documents
    • Prohibited areas
  • b. Measures which prevent unauthorized persons from using the processing systems:
    • personal and individual user log-in for registration in the systems or company network
    • authorization process for access authorizations
    • limitation of authorized users
    • single sign-on
    • two-factor authentication
    • logging of access
    • additional system log-in for certain applications
    • firewall
  • c. Measures which ensure that only authorized persons have access to the processing systems and that personal data cannot be read, copied, modified or removed without authorization:
    • management and documentation of differentiated authorizations
    • Profiles / roles
    • Segregation of functions “segregation of duties”
  • d. Measures which ensure that data collected for different purposes can be processed separately:
    • access authorizations by functional responsibility
    • separate data processing by differentiating access rules
    • Separation of development and production environment

4. Measures to ensure integrity

  • access rights
  • system-side logging
  • security / logging software
  • functional responsibilities, organizationally specified responsibilities

5. Measures to ensure and restore availability

  • security concept for software and IT applications
  • back-up procedures
  • ensuring data storage in secured network
  • need-based installation of security updates
  • set-up of an uninterrupted power supply
  • fire extinguisher protection for the server room
  • fire extinguisher protection for the archiving facilities
  • air-conditioned server room
  • virus protection
  • firewall
  • emergency plan
  • successful emergency exercises
  • redundant, locally separated data storage (off-site storage)

6. Measures to ensure resilience

  • emergency plan in case of machine breakdown / business recovery plan
  • redundant power supply
  • sufficient capacity of IT systems and plants
  • redundant systems / plants
  • resilience and error management

7. Procedure for regular review, assessment and evaluation of the effectiveness of the technical and organizational measures

  • procedures for regular controls/audits
  • concept for regular review, assessment and evaluation
  • reporting system
  • penetration tests
  • emergency tests

8. “Control of instructions / assignment control”

  • process of issuing and/or following instructions
  • control / examination that the assignment is executed in accordance with instructions
  • commitment of employees to maintain confidentiality
  • keeping records of processing activities in accordance with art. 30, para. 2 GDPR
  • documentation and escalation process for personal data breaches
  • guidelines / instructions which guarantee technical-organizational measures for the security of the processing
  • process for forwarding requests of data subjects

ANNEX III

LIST OF SUB-PROCESSORS

  1. The Company from time to time employs third-party consultants, such as the Accessibility Service Professionals, who act as subprocessors in connection with providing services to the Company.
  2. Amazon Web Services
  3. IBM Cloud Services
  4. Google
  5. Cantab Research Limited (d/b/a Speechmatics)
  6. Dotsub
  7. Gengo, Inc.
  8. TransPerfect Translations International Inc.
  9. Wowza Media Systems, LLC
  10. Microsoft and Microsoft Azure

Data exporter may register to receive email notifications regarding sub-processor modifications here: https://go.3playmedia.com/subprocessor-change-notification. Provided that data exporter is registered to receive such notifications, data importer shall inform data exporter via email of any intended changes concerning the addition or replacement of sub-processors at least ten (10) days before the new subprocessor processes personal data.

Exhibit B

STANDARD CONTRACTUAL CLAUSES

Processor to Processor

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.

[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, 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.

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 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
    • (iii)      Clause 9(a), (c), (d) and (e);
    • (iv)      Clause 12(a), (d) and (f);
    • (v)       Clause 13;
    • (vi)      Clause 15.1(c), (d) and (e);
    • (vii)     Clause 16(e);
    • (viii)    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

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.

8.1   Instructions

  • (a) The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
  • (b)       The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
  • (c)        The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
  • (d)       The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter (2).[2] See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.

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 controller, as communicated to the data importer by the data exporter, or 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 personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise 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.

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 rectify or erase 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 controller 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 organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they 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 subject. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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 or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational 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 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 authorized 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, without undue delay, the data exporter and, where appropriate and feasible, the controller 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 data breach, including 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 its controller so that the latter may in turn 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 set out 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 controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (3) (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 of Regulation (EU) 2016/679;
  • (iii)      the onward transfer is necessary for the establishment, exercise or defense 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.

[3]  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 purposes of these Clauses.

8.9   Documentation and compliance

  • (a)     The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller 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 controller.
  • (c)        The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
  • (d)       The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
  • (e)        Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
  • (f)        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.
  • (g)       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

  • (a)     The data importer has the controller’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
  • (b)       Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), 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. ([4]) 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 or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.

[4] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

 

Clause 10

Data subject rights

  • (a)      The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorized to do so by the controller.
  • (b)       The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational 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 controller, as communicated by 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.
  • (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.
  • (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

  • (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

  • (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 behavior 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.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.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

  • (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 authorizing 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 authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ([5]);
    • (iii)      any relevant contractual, technical or organizational 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). The data exporter shall forward the notification to the controller.
  • (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 organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation, if appropriate in consultation with the controller. 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 controller or 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.

[5] 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.

Clause 15

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

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.The data exporter shall forward the notification to the controller.
  • (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.). The data exporter shall forward the information to the controller.
  • (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. The data exporter shall make the assessment available to the controller.
  • (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 and the controller 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

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 Ireland.

Clause 18

Choice of forum and jurisdiction

  • (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.

APPENDIX

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A. LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name: Customer

Address: The address specified in Customer’s Services account.

Contact person’s name, position and contact details: The billing contact specified in Customer’s Services account.

Activities relevant to the data transferred under these Clauses: Receipt of the Services as described in the Agreement.

Signature and date:

Role (controller/processor): Processor

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name: 3Play Media, Inc.

Address: 77 N. Washington St, Floor 2, Boston, MA 02114

Contact person’s name, position and contact details: Amy Dwyer, Privacy Officer, [email protected]

Activities relevant to the data transferred under these Clauses: Provision of the Services as described in the Agreement.

Signature and date:

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

  • Representatives of the data exporter.
  • Individuals whose data is contained in Source Materials as further specified in the Agreement.

Categories of personal data transferred

  • Representatives of the data exporter:
    • Name, postal address, email address, and, if applicable, confirmation of authentication from Facebook.
  • Individuals whose data is contained in Source Materials:
    • Any personal data uploaded to the 3Play Media Portal or otherwise provided to the data importer by the data exporter and its representatives, on behalf of the data exporter and/or its customers and any other third party for whom the data exporter submits materials for use in connection with the Services, including data contained in videos, content, files, data and other materials.

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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Any sensitive data included in videos, content, files, data and other materials uploaded to the 3Play Media Portal or otherwise provided by the data exporter and/or its representatives, the extent of which is determined and controlled by the data exporter in its sole discretion, including, but not limited to: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation, or data relating to criminal convictions or offenses.

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

Personal data will be transferred under these Clauses on a continuous basis.

Nature of the processing

The personal data will be subject to basic processing, which may include without limitation collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing Services to the data exporter in accordance with the terms of the Agreement.

Purpose(s) of the data transfer and further processing

Provision of the Services by the data importer to the data exporter.

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

The duration of the processing under these Clauses shall continue as long as data importer carries out personal data processing operations on behalf of data exporter or until the termination of the Agreement (and all personal data has been returned or deleted in accordance with these Clauses).

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

Personal data will be transferred to subprocessors in order for the data importer to provide the Services to the data exporter. The nature of the processing by such subprocessors will be as follows: the personal data will be subject to basic processing, which may include without limitation collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing services to the data exporter in accordance with the terms of the Agreement. The duration of the processing by such subprocessors shall continue as long as such subprocessors carry out personal data processing operations on behalf of the data importer.

C. COMPETENT SUPERVISORY AUTHORITY

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

The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.

 

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

EXPLANATORY NOTE:

The technical and organizational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Description of the technical and organizational 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.

For transfers to (sub-) processors, also describe the specific technical and organizational 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.

Annex II to Exhibit A to this DPA is incorporated herein by reference.

 

ANNEX III

LIST OF SUB-PROCESSORS

Annex III to Exhibit A to this DPA is incorporated herein by reference.

Exhibit C

UK DATA EXHIBIT

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

This Addendum, which is in the form issued by the Information Commissioner for persons making Restricted Transfers, provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract by the Parties.

Part 1: Tables

Table 1: Parties

Start date The later of: (i) the DPA Effective Date; or (ii) the date the Agreement is entered into by the Parties.
The Parties Exporter (who sends the Restricted Transfer) Importer (who receives the Restricted Transfer)
Parties’ details Full legal name: Customer

Trading name (if different): Customer

Main address: The address specified in Customer’s Services account.

Official registration number: Customer’s official registration number (if any), as specified in Customer’s Services account.

 Full legal name: 3Play Media, Inc.

Trading name (if different): n/a

Main address: 77 N Washington St Floor 2, Boston, MA 02114

Official registration number: Registered as a corporation in Delaware, United States
Key Contact Full Name: The billing contact specified in Customer’s Services account.

Job Title: Customer’s billing contact person’s position, as specified in Customer’s Services account.

Contact details: Customer’s billing contact person’s contact details, as specified in Customer’s Services account.

 Full Name: Amy Dwyer

Job Title: Privacy Officer

Contact details: [email protected]

Table 2: Selected SCCs, Modules and Selected Clauses

Addendum EU SCCs The Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum:
Module Module in operation Clause 7 (Docking Clause) Clause 11
(Option)		 Clause 9a (Prior Authorisation or General Authorisation) Clause 9a (Time period) Is personal data received from the Importer combined with personal data collected by the Exporter?
1 No n/a n/a
2 (Exhibit A to this DPA) Yes Yes No General Authorisation 10 days
3 (Exhibit B to this DPA) Yes Yes No General Authorization 10 days
4 No n/a n/a n/a

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs, and which for this Addendum is:

Annex IA: List of Parties: The data exporter and data importer whose identity and contact details are set out in Annex IA in the Appendix of the Addendum EU SCCs.
Annex IB: Description of Transfer: As set out in Annex IB in the Appendix of the Addendum EU SCCs.
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: As set out in Annex II in the Appendix of the Addendum EU SCCs.
Annex III: List of Sub processors (Modules 2 and 3 only): As set out in Annex III in the Appendix of the Addendum EU SCCs.

Table 4: Ending this Addendum when the Approved Addendum Changes

Ending this Addendum when the Approved Addendum changes Which Parties may end this Addendum as set out in Section 19:

☒Importer

☒Exporter

☐neither Party

Part 2: Mandatory Clauses

Entering into this Addendum

1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

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

Interpretation of this Addendum

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

Addendum This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCs The Approved EU SCCs referred to in Table 2, including the Appendix Information.
Appendix Information As set out in Table ‎3.
Appropriate Safeguards The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when a controller or processor is making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved Addendum The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.
Approved EU SCCs The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICO The Information Commissioner.
Restricted Transfer A transfer which is covered by Chapter V of the UK GDPR.
UK The United Kingdom of Great Britain and Northern Ireland.
UK Data Protection Laws All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPR As defined in section 3 of the Data Protection Act 2018.

4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

5. If the provisions included in the Addendum EU SCCs amend the Approved EU SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.

8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.

10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

  • a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
  • b. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
  • c. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

13. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.

14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.

15. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:

  • a. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
  • b. In Clause 2, delete the words:
    • “and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
  • c. Clause 6 (Description of the transfer(s)) is replaced with:
    • “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
  • d. Clause 8.7(i) of Module 1 is replaced with:
    • “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
  • e. Clause 8.8(i) of Modules 2 and 3 is replaced with:
    • “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
  • f. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
  • g. References to Regulation (EU) 2018/1725 are removed;
  • h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
  • i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
  • j. Clause 13(a) and Part C of Annex I are not used;
  • k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
  • l. In Clause 16(e), subsection (i) is replaced with:
    • “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
  • m. Clause 17 is replaced with:
    • “These Clauses are governed by the laws of England and Wales.”;
  • n. Clause 18 is replaced with:
    • “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
  • o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

18. From time to time, the ICO may issue a revised Approved Addendum which:

  • a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
  • b. reflects changes to UK Data Protection Laws;
  • The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:

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

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

Exhibit D

California Data Exhibit

  1. This California Data Exhibit (this “Exhibit”), forms part of the DPA. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the DPA or the Agreement (as applicable).
  2. As between the parties, Company is a service provider to Customer with respect to California Personal Data.
    • a. In this Exhibit:
      • i. “Genetic Data“ means any data, regardless of its format, that results from the analysis of a biological sample of a California resident, or from another source enabling equivalent information to be obtained, and concerns genetic material. Genetic material includes, but is not limited to, deoxyribonucleic acids (DNA), ribonucleic acids (RNA), genes, chromosomes, alleles, genomes, alterations or modifications to DNA or RNA, single nucleotide polymorphisms (SNPs), uninterpreted data that results from analysis of the biological sample or other source, and any information extrapolated, derived, or inferred therefrom.
      • ii. “Health Insurance Information” means a California resident’s insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the California resident, or any information in a California resident’s application and claims history, including any appeals records.
      • iii. “Medical Information” means any California Personal Data, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.
      • iv. “Sensitive California Personal Data” means any California Personal Data that constitutes either of the following: (A) California resident’s first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (I) social security number; (II) driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific California resident; (III) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an California resident’s financial account; (IV) Medical Information; (V) Health Insurance Information; (VI) Genetic Data; or (VII) unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific California resident (except that unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes); or (B) a username or email address in combination with a password or security question and answer that would permit access to an online account. Sensitive California Personal Data does not include publicly available California Personal Data that is lawfully made available to the general public from federal, state, or local government records.
      • v. The following terms have the meanings given in the CCPA: “business purpose”, “personal information”, “processing”, “service provider”, “sell”, “selling”, “sale” and “sold”.
    • b. Except as otherwise required by applicable law, Company shall:
      • i. process the California Personal Data for the business purpose of providing the Services or as otherwise permitted by the CCPA;
      • ii. implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Sensitive California Personal Data (if any) intended to protect such Sensitive California Personal Data from unauthorized access, destruction, use, modification, or disclosure;
      • iii. not retain, use or disclose California Personal Data for any purpose outside the scope of the business relationship of the parties and other than for the specific purpose of providing the Services, nor retain, use, or disclose the California Personal Data for a commercial purpose other than providing the Services, or as otherwise permitted by the CCPA as applicable to service providers;
      • iv. not collect or use California Personal Data except as reasonably necessary to provide the Services;
      • v. not sell California Personal Data;
      • vi. to the extent necessary, use commercially reasonable efforts to assist Customer, at Customer’s expense, in Customer’s fulfilment of Customer’s obligation to respond to California residents’ requests to exercise rights with respect to their California Personal Data under the CCPA; and
      • vii. use commercially reasonable efforts to assist Customer, at Customer’s expense, to the extent necessary to support Customer’s compliance with Customer’s obligations under the CCPA.
    • c. Company understands the restrictions provided in Sections 2(b)(iii) and 2(b)(v) and will comply with them.
    • d. Nothing in this DPA shall prevent Company from engaging its own service providers in the processing of California Personal Data, provided that Company shall enter into contractual arrangements with such service providers requiring a substantially similar level of data protection compliance and information security as that provided in this Section 2 with respect to California Personal Data.