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Data Processing Agreement

This Data Processing Agreement (“DPA”) is subject to and forms part of your Flip.to Master Subscription Agreement and governs Flip.to’s and its Affiliates’ Processing of Personal Data.

This Data Processing Agreement (“DPA”) is supplemental to the Agreement (as defined below) and sets out the terms that apply when Personal Data (as defined below) is processed by Flip.to in connection with the provision of products and services to Customer under the Agreement (the “Services”). Terms note defined in this DPA shall have the meaning as set forth in the Agreement.

1. Definitions

For the purposes of this DPA, the following terms shall have their respective meanings set forth below and other capitalized terms used but not defined in this DPA have the same meanings as set forth in the Agreement:

"Agreement" means the Flip.to Master Subscription Agreement, as applicable, between the parties, in each case providing for the provision by Flip.to to Customer of the Services described therein.

"EEA" means the European Economic Area.

"Data Protection Laws" means all applicable privacy, anti-spam, data security, and data protection laws, rules, regulations, jurisprudence, orders, ordinances, and regulatory guidance, including: (i) the General Data Protection Regulation (Regulation (EU) 2016/679) of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("EU GDPR") (as amended, replaced or superseded); (ii) the EU GDPR as it forms part of United Kingdom (“UK”) law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (as amended, including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR”), including, in each case (i) and (ii) any applicable national implementing or supplementary legislation (e.g., the UK Data Protection Act 2018 (“UK DPA”)), and any successor, amendment or re-enactment, to or of the foregoing.

"Controller" means the entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.

"Processor" means an entity which processes Personal Data on behalf of the Controller.

"Personal Data" means any information that identifies, relates to, describes, or can be reasonably linked to a person, a household, or a person’s device.

"Security Incident" means accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, collection of, use of, release, of, deletion of, or access to Personal Data or any other breach of the protection of Personal Data or failure in the safeguards protecting such information.

"Sensitive Data" means Personal Data that is sensitive, including: (a) social security number, passport number, driver's license number, or similar identifier (or any portion thereof), (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords; (f) date of birth; (g) criminal history; (h) mother's maiden name; and (i) any other information that falls within the definition of "special categories of data" or “sensitive personal information” under applicable Data Protection Laws.

“Sell”, “Share”, “data subject”, and “processing” have the meanings assigned to those terms in applicable Data Protection Laws.

2. Relationship with Agreement

(a) Except as amended by this DPA, the Agreement will remain in full force and effect.

(b) If there is a conflict between the Agreement and this DPA, the terms of this DPA will control.

(c) Any claims brought under this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.

3. Applicability of this DPA

(a) Addendum 1 (Standard Contractual Clauses) shall apply to the processing of Personal Data by Flip.to falling within the scope of the EU GDPR.

(b) Addendum 2 shall apply to the processing of Personal Data by Flip.to falling within the scope of the UK GDPR.

(c) Addendum 3 shall apply to the processing of Personal Data by Flip.to of data subjects in Switzerland.

(d) Notwithstanding anything in this DPA, Flip.to will have the right to collect, extract, compile, synthesize and analyze data or information that is not Personal Data resulting from Customer's use or operation of the Services (“Service Data”) including, by way of example and without limitation, information relating to volumes, frequencies, recipients, open and bounce rates, traffic or any other information regarding the email and other communications Customer, its end users or recipients generate and send using the Services. To the extent any Service Data is collected or generated by Flip.to, such Service Data will be solely owned by Flip.to and may be used by Flip.to for any lawful business purpose without a duty of accounting to Customer or its recipients, provided that such data is used only in an aggregated form, without directly identifying any person. For the avoidance of doubt, this DPA will not apply to Service Data.

(e) Customer will take appropriate action, subject to the provisions of the Agreement, in the event that Flip.to misuses Personal Data or otherwise breaches the terms of this DPA, such as suspension of sharing Personal Data or termination of use of Flip.to.

Part A: General data protection obligations

4. Roles and responsibilities

4.1. Parties' Roles. Customer, as Controller, appoints Flip.to as a Processor to process the Personal Data described in Annex I on Customer's behalf.

4.2. Purpose Limitation. Flip.to shall process the Personal Data for the purposes described in Annex I during the duration of the Agreement as necessary to provide the Services and only in accordance with the lawful, documented instructions of Customer. The Agreement and this DPA sets out Customer's complete instructions to Flip.to in relation to the processing of the Personal Data and any processing required outside of the scope of these instructions will require prior written agreement between the parties.

4.3. Prohibited Data. Customer will not provide (or cause to be provided) any Sensitive Data to Flip.to for processing under the Agreement. If Flip.to believes Customer has provided Sensitive Data, Flip.io will promptly notify Customer and return and/or delete all such Sensitive Data. For the avoidance of doubt, this DPA will not apply to Sensitive Data.

4.4. Description of Processing. A description of the nature and purposes of the processing, the types of Personal Data, categories of data subjects, and the duration of the processing are set out further in Annex I.

4.5. No Selling or Sharing. Flip.to will not Sell or Share Personal Data nor use, disclose, or retain Personal Data for: (a) any purposes outside of providing the Services; (b) for its own commercial purposes; or (c) outside of the direct business relationship between Flip.to and Customer.

4.6. Compliance. Flip.to will and ensure that any person acting under Flip.to authority will:

(a) Handle Personal Data in compliance with all Data Protection Laws.Flip.to will promptly advise Customer if Flip.to determines it can no longer meet its obligations under Data Protection Laws; and

(b) Retain, use, disclose, transfer or otherwise process the Personal Data, including aggregated, anonymized, pseudonymized, or de-identified Personal Data only (i) as needed to provide the Services, and (ii) in accordance with Customer’s instructions, including as set forth in the Agreement and this DPA. Flip.to will not combine Personal Data with other information and will logically separate Personal Data in its or any its external parties’ (Sub-processors’, as defined below) databases not used exclusively for Customer matters. Flip.to will take reasonable measures to ensure that any aggregated, anonymous, de-identified, or pseudonymous Personal Data that it receives from or on behalf of Customer or that it generates through providing the Services, cannot be re-associated or re-identified with an individual and will publicly commit to not attempt to re-identify such information.

5. Security

5.1. Security. Flip.to shall, and ensure that any person acting under Flip.to’s authority will, implement appropriate technical and organizational measures to protect the Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access.

5.2. Security Exhibit. The technical and organizational security measures which Flip.to shall have in place under the Agreement are set out in Annex II to this DPA.

6. Additional security

6.2. Confidentiality of processing. Flip.to shall ensure that any person that it authorizes to process the Personal Data shall be subject to a duty of confidentiality.

6.3. Security Incidents. Upon becoming aware of a Security Incident, Flip.to shall notify Customer without undue delay and shall provide such timely information as Customer may reasonably require, including to enable Customer to fulfill any data breach reporting obligations under applicable Data Protection Laws. Flip.to shall take appropriate and commercially reasonable steps to mitigate the effects of such a Security Incident on the Personal Data under this Agreement.

7. Sub-processing

7.1. Sub-processors. Customer authorizes Flip.to to disclose or transfer Personal Data to, or allow access to Personal Data by, Sub-processors (as defined below) solely for purposes of providing the Services. Customer agrees that the Flip.to affiliates and third party sub-processors (collectively, "Sub-processors") currently engaged by Flip.to are set forth in Annex III. Customer shall be notified by Flip.to in advance of any new Sub-processor being appointed.

7.2. Objection to Sub-processors. Customer may object in writing to the appointment of an additional Sub-processor within five (5) calendar days after receipt of Flip.to's notice in accordance with the mechanism set out at Section 7.1 above. In the event that Customer objects on reasonable grounds, then the parties shall discuss commercially reasonable alternative solutions in good faith. If no resolution can be reached, Flip.to will, at its sole discretion, either not appoint Sub-processor, or permit Customer to suspend or terminate the affected Flip.to Service in accordance with the termination provisions of the Agreement.

7.3. Sub-processor obligations. Where a Sub-processor is engaged by Flip.to as described in this section, Flip.to shall:

(a) restrict the Sub-processor’s access to Personal Data only to what is necessary to perform the subcontracted services;

(b) impose on such Sub-processors, in writing, data protection terms that protect the Personal Data to the same standard provided for by this DPA and consistent with Data Protection Laws; and

(c) remain liable for any breach of the DPA caused by a Sub-processor.

8. Cooperation

8.1. Cooperation and data subjects' rights. Flip.to shall, taking into account the nature of the processing, provide reasonable assistance to Customer insofar as this is possible, to enable Customer to respond to requests from a data subject Within 10 days of a written request from Customer (email sufficient), implement or honor all data subject requests that are provided by Customer. In the event that any data subject request or complaint is made directly to Flip.to, Flip.to shall promptly inform Customer of the same.Flip.to will not respond to any such request or complaint other than to direct such to Customer unless expressly authorized by Customer.

8.2. Data Protection Impact Assessments and Privacy Impact Assessments. Flip.to shall, to the extent required by applicable Data Protection Laws, taking into account the nature of the processing and the information available to Flip.to, provide Customer with commercially reasonable assistance with data protection impact assessments and privacy impact assessments or prior consultations with data protection authorities that Customer is required to carry out under applicable Data Protection Laws.

8.3. Investigations. Assist Customer in the event of an investigation by any government entity or regulator relating to Personal Data handled byFlip.to on Customer’s behalf. Upon reasonable request from Customer, Flip.to will demonstrate its compliance with applicableData Protection Laws and this DPA.

9. Security reports and audits

9.1. The parties acknowledge that Flip.to uses external auditors to comprehensively assess the adequacy of its data processing, including the security of the systems and premises used by Flip.to to provide the Services.

9.2. The parties further acknowledge that these audits:

(a) are performed at least once each year;

(b) are conducted by auditors selected by Flip.to, but otherwise conducted with all due and necessary independence and professionalism; and

(c) are fully documented in an audit report that affirms Flip.to’s controls meet the requirements of this DPA (“Report”).

9.3. At Customer's written request, Flip.to will (on a confidential basis) provide Customer with a summary of the Report so that Customer can verify Flip.to's compliance with the audit standards against which it has been assessed, and this DPA.

9.4. Flip.to shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm Flip.to's compliance with this DPA.

9.5. While it is the parties' intention ordinarily to rely on the provision of the Report and written responses provided under this section above to verify Flip.to's compliance with this DPA, Flip.to shall permit the Customer (or its appointed third party auditors) to carry out an audit of Flip.to's processing of Personal Data under the Agreement following a Security Incident suffered by Flip.to, or upon the instruction of a data protection authority or regulator. Customer must give Flip.to reasonable prior notice of such intention to audit, conduct its audit during normal business hours, and take all reasonable measures to prevent unnecessary disruption to Flip.to's operations. Any such audit shall be subject to Flip.to's security and confidentiality terms and guidelines. Upon Customer’s written request (which may include email), Flip,to will respond to Customer’s security & privacy risk questionnaire as well as any reasonable follow-up questions, and provide supplementary documentation, related thereto.

10. Deletion / return of data

10.1. Upon request from Customer during the term of the relationship, Flip.to will delete Personal Data upon Customer’s request within 45 days from receipt of the request (or as otherwise required by Data Protection Laws).

10.2. Upon termination or expiry of the Agreement, Flip.to shall at Customer’s election, delete or return to Customer the Personal Data (including copies) in Flip.to's possession, save to the extent that Flip.to is required by any applicable law to retain some or all of the Personal Data. When applicable law no longer requires retention, Personal Data will be deleted in accordance with Flip.to’s documented retention and deletion policies.

Addendum 1

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

Purpose and scope

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

(b) The Parties:

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

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

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

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

Clause 2

Effect and invariability of the Clauses

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

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

Clause 3

Third-party beneficiaries

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

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

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

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

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

(v) Clause 13;

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

(vii) Clause 16(e);

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

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 - Optional

Docking clause

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

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

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

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

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

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

8.2 Purpose limitation

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

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

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

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

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

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

8.7 Sensitive data

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

8.8 Onward transfers

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

(a) 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;

(b) 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;

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

(d) 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.

(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) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 business 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. (This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

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

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

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

Clause 10

Data subject rights

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

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

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

Clause 11

Redress

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

(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 behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

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

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

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

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

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

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

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

15.1 Notification

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

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

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

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

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

15.2 Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

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

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

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

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

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

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

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

Clause 17

Governing law

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

Clause 18

Choice of forum and jurisdiction

(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.

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

ANNEX I

A. LIST OF PARTIES (*for purposes of Personal Data being transferred to a country, or international organization, located outside the EEA only)

Data exporter(s):

  1. Name: [ Customer Name ]

Address: [ Customer Address ]

Contact person’s name, position and contact details: [ Customer Contact ]

Activities relevant to the data transferred under these Clauses: As set forth in the Agreement.

Role: Controller

Data importer(s):

  1. Name: Flip.to

Address: 766 N. Sun Drive, Suite 2030, Lake Mary, FL 32746

Contact person’s name, position and contact details: Flip.to Privacy Team, privacy@flip.to

Activities relevant to the data transferred under these Clauses: As set forth in the Agreement.

Role: Processor

B. DATA PROCESSING

Nature and purposes of processing

Flip.to is a US-headquartered provider of a cloud-based, collaborative marketing platform. These services will consist primarily of engaging users on behalf of the Customer to reach, inspire and convert new audiences. Flip.to provides the Customer with hosted & integrated web experiences, email communication, content management & delivery, contact relationship management & analytic reports.

Otherwise, the data processing will involve any such processing that is necessary for the purposes set out in the Agreement, the DPA, or as otherwise agreed between the parties.

Categories of data subjects

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

  • Customers, business partners and vendors of Customer

  • Leads introduced to Customer by way of a conversion experience

  • Customer’s Users authorized by the Customer to use the Services

Categories of data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

  • First and last name

  • Email address

  • Reservation data

  • Localization data

  • Social connection data

Special categories of data (if appropriate)

Flip.to does not intentionally collect or process any special categories of data in the provision of its service. Under the Agreement, the Customer agrees not to provide special categories of data to Flip.to at any time.

Duration of processing

The personal data will be processed for the term of the Agreement, or as otherwise required by law or agreed between the parties.

Transfers to Sub-processors

The categories of personal data listed above may be transferred to Processor’s sub-processors in order to provide Services to Controller for the purposes listed above during the term of the Agreement.

C. COMPETENT SUPERVISORY AUTHORITY

The Supervisory Authority of the Irish Data Protection Commission.

ANNEX II

FLIP.TO SECURITY MEASURES

Infrastructure Level Controls

  • Access to the servers (backend) requires two-step verification (also known as two-factor authentication), and can only be performed from authorized locations.

  • Public access to Flip.to web servers is controlled by a firewall and communication can only be established with common Internet ports (80 and 443).

  • Flip.to maintains a clear separation between web and database databases, the latter only being accessible by the application within the confines of the datacenter network. Sensitive data is encrypted when stored in databases.

  • Flip.to employees are uniquely identified when accessing confidential information and are given limited access to only the accounts that they are actively managing.

  • Flip.to follows all security measures required to prevent application vulnerabilities that might allow unauthorized people to access or manipulate its data.

  • Patching servers regularly with the latest Microsoft security updates.

  • Malware detection service on all servers.

  • Using denial-of-service (DoS) attack mitigation on all web servers.

  • Ongoing network monitoring of the Flip.to Azure infrastructure.

Database Level Controls

  • Using SQL Azure for additional protection.

  • Using Auditing & Threat Detection.

  • Using ongoing Vulnerability Assessments.

  • Backups are secured and encrypted.

  • Short-term point-of-time backups stored for 35 days.

  • Long –term weekly backups are stored for 52 weeks.

  • Databases use Transparent Data Encryption (TDE)

Application Level Controls

  • Maintain documentation on overall application architecture, process flows, and security features.

  • Employ secure programming guidelines in the development of applications.

  • Multi-tier architecture each maintained with minimum privileges possible.

  • Using the strictest security configurations available to Microsoft-based web applications.

  • Central authentication and authorization mechanism.

  • Encryption of sensitive information.

  • Central validation of all input based on strict guidelines of data type, format and content.

  • Central handling of untrusted uploaded images.

  • Central handling of errors and limiting the data being sent back to clients.

  • Limit cookie usage and cookie permissions, and use them for tracking only.

  • Forcing HTTPS for any sensitive data exchanged between client and server.

  • Central guards against any injection attacks.

  • Central guards against click-jacking attacks on all pages not meant to be loaded inside an iframe.

  • Automated tests during the development process.

  • A mix of automated and manual tests once application updates are deployed.

Integration Strategies

  • Details passed on the URL are encoded.

  • All data collected is passed to Flip.to over HTTPS.

  • All data passed to Flip.to is validated for syntax, format and content.

  • Data is validated against our backend to ensure authenticity.

  • Data sent back to the client is directly from the backend, and does not include any information supplied from the original caller.

ANNEX III

FLIP.TO LIST OF SUB-PROCESSORS

Name of Sub-ProcessorDescription of ProcessingLocation of Processing

Microsoft

Hosting provider

United States

Google

Website analytics and performance

United States

Twilio / SendGrid

Email infrastructure

United States

Salesforce

Customer relationship mangagement

United States

Stripe

Payment processor

United States

Addendum 2

UK International Data Transfer Addendum

Part 1: Tables

Table 1: Parties

Start date

The Parties

Exporter (who sends the Restricted Transfer)

Importer (who receives the Restricted Transfer)

Parties’ details

Full legal name: [ Customer Name ]

Trading name (if different):      

Main address (if a company registered address): [ Customer Address ]

Official registration number (if any) (company number or similar identifier):      

Full legal name: Flip to, Inc.

Trading name (if different):      

Main address (if a company registered address):766 N. Sun Drive, Suite 2030, Lake Mary, FL 32746

Official registration number (if any) (company number or similar identifier):      

Key Contact

Full Name (optional):      

Job Title: [ Customer Title ]

Contact details including email: [ Customer Email ]

Full Name (optional): Gil Shabat

Job Title: Chief Technology Officer

Contact details including email: gshabat@flip.to

Signature (if required for the purposes of Section ‎2)

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

N/A

N/A

N/A

2

Yes

No

No

General

30 business days

No

3

No

N/A

N/A

N/A

N/A

N/A

4

No

N/A

N/A

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 (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: Please seeAnnex I.A to Addendum 1.

Annex 1B: Description of Transfer: Please see Annex I.B to Addendum 1.

Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: Please see Annex II toAddendum 1.

Annex III: List of Sub processors (Modules 2 and 3 only): Please see Annex III to Addendum 1.

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

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.

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

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

Addendum

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

Addendum EU SCCs

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

Appendix Information

As set out in Table ‎3.

Appropriate Safeguards

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

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.

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

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

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.

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

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.

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.

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

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.

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

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

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

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.

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.

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.

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.

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.

Addendum 3

Switzerland Addendum to the SCCs

Where the Standard Contractual Clauses apply to a transfer of Personal Data to which the Federal Act on Data Protection of June 19, 1992 (“FADP”) applies, the Standard Contractual Clauses shall be deemed to be amended to the extent necessary to operate to provide appropriate safeguards for such transfers in accordance with the FADP, including without limitation the following:

(i) Clause 13(a) andPart C of Annex I are not used; the “competent supervisory authority” is the Swiss Federal Data Protection and Information Commissioner, insofar as the data transfer is governed by the FADP and an EU competent supervisory authority insofar as the data transfer is governed by the GDPR;

(ii) With regards to Clause 18 (c), if data subjects are located in Switzerland, Swiss courts should be an alternative place of jurisdiction for data subjects located in Switzerland;

(iii) the term “Member State” cannot be interpreted to exclude data subjects in Switzerland from exercising their rights under Data Protection Law;

(iii) the term “personal data” shall be deemed to include the data of legal entities to the extent such data is protected under the FADP; and

(iv) any amendments required from time to time by the Federal Data Protection and Information Commissioner in order to comply with the FADP.

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