DATA PROCESSING AGREEMENT

Updated: Tuesday, January 3, 2023 - 17:00 GMT

AGREEMENT ENTERED INTO BY OUTSYSTEMS AS PROCESSOR AND ITS CUSTOMER AS CONTROLLER

WHEREAS:

A.      Customer (hereinafter “Customer” or the “Controller”) has entered into a Master Subscription Agreement or into an agreement with similar nature and purpose (hereinafter “Master Subscription Agreement or “Master Agreement”) with OutSystems (hereinafter “OutSystems” or the “Processor”);

B.      The execution of such Master Agreement and the provision of Services by OutSystems may entail the Processing of Personal Data on behalf of the Customer; and

C.      Customer and OutSystems intend to regulate the Processing of Personal Data by OutSystems on behalf of the Customer to the extent required by the applicable Data Protection Laws.

The Customer and OutSystems (jointly referred to as “Parties”) enter into this Data Processing Agreement (also referred to as “DPA”), which is regulated by the following clauses:

1. DEFINITIONS

Capitalized terms shall have the meaning set out below. Any capitalized terms not defined in this DPA shall have the meaning set out in the Master Subscription Agreement or as otherwise defined in the applicable Data Protection Laws:

“Authorized Affiliates” means the Customer’s Affiliate(s) which is bound by the terms of this Data Processing Agreement, that is subject to the Data Protection Laws of the European Union (“EU”), the European Economic Area (“EEA”) and/or their Member States, Switzerland and/or United Kingdom, and/or all other applicable Data Protection Laws and is permitted to use the Services pursuant to the Master Subscription Agreement executed between the Customer and OutSystems but has not signed its own Order with OutSystems, being Customer’s responsibility to guarantee that Affiliate(s) is aware of the Processing activities that may be carried out by OutSystems and that all authorizations from Affiliate(s) for such processing activity are collected.
“Breach Event” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored, or otherwise processed by OutSystems.
“Controller” means the Customer or any of its Authorized Affiliates or any other entity that the Customer appoints to provide instructions to OutSystems as the natural or legal person who determines the purposes and means of Processing of the Personal Data.
“Customer” means the Customer (and any of its Authorized Affiliates, if applicable) who has entered into the Master Subscription Agreement with OutSystems.
“Customer’s Personal Data” means any Personal Data Processed by OutSystems or another Sub-Processor on behalf of the Customer, which is transmitted to or given access to OutSystems by the Customer pursuant to or in connection with the Master Subscription Agreement.
“Data Subject” means the identified or identifiable natural person whose Personal Data is Processed.
“Data Protection Laws” means all applicable laws and regulations, including the GDPR, laws, and regulations of the EU, the EEA, and their member states, Switzerland, the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“GDPR” means the 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 and repealing Directive 95/46/EC (General Data Protection Regulation).
“List of Sub-processors” means the list of Sub-processors engaged by OutSystems, available here: https://www.outsystems.com//-/media/files/legal/dpa-list-of-sub-processors.pdf
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, a location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as well as the categories of data referred to in Exhibit A, which may be supplied to and Processed by Outsystems on behalf of the Controller pursuant to or in connection with the Master Subscription Agreement.
“Personnel” means OutSystems’ employees or other individuals with a contractual relationship with OutSystems.
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means OutSystems as the legal person who processes Personal Data on behalf of the Controller.
“Restricted Transfers” means the transfer of Personal Data to countries that do not ensure an adequate level of data protection within the meaning of Data Protection Laws, to the extent such transfers are subject to such Data Protection Laws. Restricted Transfers include transfers of Customer’s Personal Data to OutSystems and onward transfers of Customer’s Personal Data from OutSystems to a Sub-Processor and from a Sub-Processor to another Sub-Processor or between two establishments of a Sub-Processor.
“Services” means the OutSystems Software provided on cloud (platform as a service) and the Support and Updates jointly provided through a Subscription and/or the Professional Services provided by OutSystems, as defined in the Master Subscription Agreement.
“Standard Contractual Clauses” means (i) the Standard Contractual Clauses approved by Commission Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as included in Exhibit B, which forms part of this Data Processing Agreement and binds the Parties and (ii) the International Data Transfer Addendum to the EU SCCs issued by the Information Commissioner’s Office (“UK SCCs”) as included in Exhibit C. 
“Sub-Processor” means an entity engaged by the Processor exclusively for the Processing activities to be carried out pursuant to or in connection with the Master Subscription Agreement on behalf of the Customer and in accordance with its instructions, as transmitted by the Customer.
“Third-Party Services” means certain services and applications, including Non-OutSystems Applications and Add-ons, operated by third parties chosen and directly contracted by Customer, that integrate with the Services. The providers of said Third Party Services are not OutSystems Sub-Processors.
“User” means a natural person authorized by the Customer to use the Services.

 

2. PROCESSING OF PERSONAL DATA

2.1      Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, OutSystems is the Processor, and the Customer is the Controller.

2.2      Processing of Personal Data. OutSystems shall Process Personal Data as confidential information and shall only Process Personal Data on behalf of the Customer and in accordance with the requirements of the Data Protection Laws, Customer documented instructions and Exhibit A attached hereto, as necessary for the provision of the agreed Services by OutSystems. OutSystems must inform the Customer immediately in case it believes that Customer’s instructions infringe any Data Protection Laws; OutSystems may inform the Customer if it considers the instructions provided to be insufficient.

2.3      Customer’s Processing of Personal Data. Customer shall assess the use of the Services from a data protection perspective, considering its jurisdiction and applicable laws. Therefore, the Customer expressly agrees that Customer will be solely liable for compliance with any applicable laws and undertakes to perform a legal analysis, prior to the execution of the Master Subscription Agreement.

2.4      Details of Processing. The subject matter of Processing of Personal Data by OutSystems is the execution of the Master Subscription Agreement. The nature and purpose of the Processing, the categories of Data Subjects and the types of Personal Data Processed under this Data Processing Agreement are further specified in Exhibit A of this Data Processing Agreement.

2.5      Duration of the Processing. The Processing shall be carried out for the duration of the Master Subscription Agreement, unless otherwise agreed upon in writing by the Parties.

3. SECURITY

3.1      OutSystems uses appropriate technical, organizational and administrative security measures to protect the Personal Data Processed on behalf of the Customer against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction. OutSystems security measures are continually improved in line with technological developments.

3.2      OutSystems has implemented access controls to ensure that the access to and Processing of the Personal Data in relation to the provision of the Services is strictly limited to those individuals who need to know or have access to such Personal Data for the performance of their specific duties or tasks (need-to-know).

3.3      OutSystems is certified and attested to confirm compliance with ISO 27001, ISO 27017 and ISO 27018 standards, by independent auditors.

4. OUTSYSTEMS’ PERSONNEL

4.1      OutSystems ensures that its Personnel who has access or Processes Customer’s Personal Data is subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

5. COOPERATION

5.1      Cooperation with the Customer. OutSystems shall fully cooperate with and assist the Customer in relation to the response to any notifications from a supervisory authority, in connection with the Personal Data including, without limitation, when requested by the Customer, the preparation of supporting documentation to be submitted to the relevant supervisory authority and provision of supporting documentation sufficient to evidence that OutSystems is legally bound by the terms of this Agreement.
In addition, OutSystems shall provide the Customer with all assistance and cooperation as may reasonably be deemed necessary in the event of a Breach Event, namely in the preparation of the relevant notifications and in the implementation of the necessary mitigation measures.
OutSystems shall, and shall procure that its Sub-Processors shall, promptly provide to the Customer, upon request, all the information in its possession or control in relation to the Processing of the Personal Data under this Agreement and provide all assistance and cooperation as may reasonably be required by the Customer for the latter to assess whether the Processing of the Personal Data is carried out in accordance with this Agreement.
OutSystems shall cooperate fully with and assist the Customer in relation to any notifications to be carried out or prior approvals that the latter may be required to obtain from a supervisory authority, in connection with the Personal Data whenever requested by the Customer including, without limitation, the preparation of supporting documentation.

5.2      Data Protection Impact Assessment and Prior Consultation. Where requested to do so by the Customer, OutSystems shall disclose the information reasonably required to demonstrate compliance with the applicable Data Protection Laws, including the necessary information for the Customer to carry out a privacy impact assessment of the Services and in implementing mitigation actions agreed by the Parties to address privacy risks which may have been identified.

5.3      Data Subject Requests. OutSystems shall, to the extent legally permitted, promptly notify the Customer if it receives a request from a Data Subject to exercise any of the Data Subject's rights, namely the right of access, to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
Considering the nature of the Processing, OutSystems shall assist the Customer in the fulfillment of Customers’ obligation to respond to a Data Subject Request under Data Protection Laws.
In addition, if the Customer does not have the ability to address a Data Subject Request, OutSystems shall, upon Customer’s request, provide commercially reasonable efforts to assist the Customer in responding to such Data Subject Request, to the extent OutSystems is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws.

5.4      Authority Requests. Unless prohibited by law, OutSystems shall, and shall procure that its Sub-Processors shall, promptly and in any event without undue delay notify the Customer, including by providing copies of the received documentation, if it receives any communication, correspondence or request for information (whether written or oral) from any regulatory or judicial authority relating directly or indirectly to the Personal Data, including in connection with any enforcement action or investigation carried out under the applicable Data Protection Laws.

5.5      Data Quality. OutSystems shall, and shall procure that the Sub-Processors shall, preserve the accuracy and integrity of Personal Data. OutSystems shall update, amend, correct or delete Personal Data that is inaccurate or incomplete at Customer’s request, in accordance with the provisions set forth in this Data Processing Agreement or under the applicable Data Protection Laws.

5.6      Deletion, Destruction or Return of Personal Data. Unless otherwise stipulated by the applicable Data Protection Laws, the Master Subscription Agreement or this Agreement, notwithstanding any failure of the Customer to provide written instructions, OutSystems shall, and shall procure that the Sub-Processors shall, delete or destroy all Personal Data stored, collected or Processed on behalf of the Customer, upon termination of the Master Subscription Agreement.
Following expiry or termination of the Master Subscription Agreement, and at any other time upon the Customer's written request, OutSystems shall, and shall procure that all Sub-Processors shall, immediately and permanently delete all electronic copies of the Personal Data from its/their computer systems (including, without limitation, servers, hardware and mobile devices) and from digital media in its/their possession or control; and in respect of hard copies of the Personal Data, securely destroy all originals and copies of Personal Data in its, or its Sub-Processors, possession or control, unless OutSystems is required to retain some or all of the Personal Data to comply with the applicable Data Protection Laws.

5.7      Costs. OutSystems may charge additional costs in order to comply with its cooperation duties referred in this clause 5.

6. BREACH EVENT

6.1      Breach Notification. OutSystems shall notify the Customer promptly and without undue delay after becoming aware of any Breach Event. Where and in so far as it is not possible to provide all the relevant information at the same time, the information may be provided in phases without undue delay.

6.2      Cooperation. OutSystems shall fully and promptly cooperate with the Customer in satisfying its obligations with respect to a Breach Event, as determined by the applicable Data Protection Laws.

7. SUB-PROCESSORS

7.1      Selection of Sub-Processors. The Customer hereby authorizes OutSystems to engage Sub-Processors. The Sub-Processors engaged must ensure compliance with the requirements and/or obligations foreseen in the Data Protection Laws and this Agreement.

7.2      Current Sub-Processors. For these purposes, Customer expressly consents to the engagement as Sub-Processors of the entities listed in the List of Sub-processors

7.3      Objection. If necessary, OutSystems will update the Sub-Processors listed in the List of Sub-processors. In case OutSystems updates the List of Sub-Processors, Customer shall be promptly notified of such fact, and shall be given the opportunity to reasonably object to such change within 30 days counting from OutSystems’ notification. Customer accepts to be informed of the amendments to the List of Sub-processors by email.
If within such 30 days, the Customer notifies OutSystems of any objection to the proposed appointment, the Parties shall work together to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Sub-Processor. Costs related to this change, if any, will be borne by Customer.

7.4      Engagement of Sub-Processors. With respect to each Sub-Processor, OutSystems shall ensure that the arrangement between OutSystems and any prospective Sub-Processor is governed by a written contract including terms which offer at least the same level of protection for the Personal Data as those set out in this Data Processing Agreement, and that the Sub-Processors act in accordance with Customers’ instructions, as transmitted by OutSystems.

7.5      Support and Professional Services. The Customer undertakes not to make any Personal Data available to OutSystems while procuring and in the context of OutSystems’ Support services and in the context of the provision of Professional Services directly by OutSystems.

7.6      Third-Party Services. If Customer subscribes to any Third-Party Services, even if they have some interaction with the Services, Customer shall perform its own due diligence from a data protection, privacy and security perspective. Said Third-Party Services providers are not OutSystems Sub-Processors and OutSystems is not liable for the processing of Customer’s Personal Data by Third-Party Providers.

7.7      OutSystems liability. Where the Sub-Processor fails to fulfil its data protection obligations, OutSystems will remain liable to the Customer for the performance of such Sub-Processor’s obligations.

8. AUDIT RIGHTS

8.1      Information. OutSystems shall, upon request, make available to the Customer information reasonably necessary to demonstrate compliance with this Data Processing Agreement.

8.2      Audits. OutSystems shall allow the Customer to perform audits in relation to the Processing of Personal Data under the Master Subscription Agreement.
Customer shall give OutSystems a reasonable prior written notice of any audit or inspection to be conducted under this Section (which shall, in no event, be less than thirty (30) days’ notice, unless if required by a Supervisory Authority) and ensure that each of its mandated auditors uses its best efforts to avoid causing, and hereby undertakes to indemnify OutSystems in respect of, any damage, injury or disruption to OutSystems’ premises, equipment, Personnel, data, and business (including any interference with the confidentiality or security of the data of OutSystems’ other Customers or the availability of OutSystems’ Services to such other Customers) while its Personnel and/or its auditor’s personnel (if applicable) are on those premises in the course of any on-premise inspections.
OutSystems is not obliged to give access to its premises for the purposes of such an audit or inspection:

(i)       to any individual unless he or she presents reasonable evidence of identity and authority;
(ii)       to any auditor in relation to whom OutSystems has not given its prior written approval (which may not be unreasonably withheld);
(iii)       if the auditor does not enter into a non-disclosure agreement with OutSystems on terms acceptable to OutSystems;
(iv)       where, and to the extent that OutSystems considers, acting reasonably, that to do so would result in interference with the confidentiality or security of the data of OutSystems’ other Customers or the availability of OutSystems’ Services to such other Customers;
(v)       outside normal business hours at those premises; or
(vi)       on more than one (1) occasion in each period of twelve (12) months, except for any additional audits or inspections which:
a.       Customer reasonably considers necessary because of a Breach Event; or
b.       Customer is required to carry out in accordance to the applicable Data Protection Laws or as indicated by a Supervisory Authority, where Customer has identified the Breach Event or the relevant requirement in its notice to OutSystems of the audit or inspection.

The Parties agree that the costs of any inspection or audit to be carried out by or on behalf of the Customer pursuant to this Section 8 shall be paid in advance of such inspection or audit and, unless otherwise agreed in writing between the Parties, Customer shall bear any third party costs in connection with such inspection or audit and reimburse OutSystems for all costs incurred by OutSystems and time spent by OutSystems (at OutSystems’ then-current professional services rates) in connection with any such inspection or audit.

9. OUTSYSTEMS AS A CONTROLLER

The Parties agree that OutSystems and its Affiliates may collect and use technical data related to the use of the Software, its performance, configuration and environment (“Usage Data”) for statistical purposes, to improve the Software, and for compliance verification. Customer shall have the right to cancel the collection of Usage Data at all times during the execution of this Agreement by providing written notice to OutSystems

10. RESTRICTED TRANSFERS

The Parties hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfers from the Customer to OutSystems.
OutSystems agrees that no Personal Data Processed on behalf of the Customer shall be Processed by any Sub-Processor outside the EU/EEA otherwise in accordance with adequate transfer mechanisms, namely the Standard Contractual Clauses.
OutSystems shall include in the List of Sub-processors information regarding Restricted Transfers and inform the Customer of any changes to the appropriate safeguards.

11. LIABILITY

Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and OutSystems, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Master Subscription Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Master Agreement and all DPAs together.

12. NOTICES

Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice): (i) to OutSystems: by email to legal@outsystems.com or to Customer: to the email address of the Customer provided by the Customer by any means (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00 am of the next business day after the date of the transmission by email. Notices hereunder will be sent to the contact and addresses set forth in the signature sections of this Agreement. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in the English language.

13. SEVERABILITY

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the Agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.

14. GOVERNING LAW AND JURISDICTION

This Data Processing Agreement shall be governed by, and construed and enforced in accordance with, the governing clause established in the Master Subscription Agreement, excluding the rules regarding the conflict of laws. In the absence of a governing clause, the governing law applicable to the OutSystems contracting party, as determined by the place of its registered office, shall prevail.

EXHIBIT A

PROCESSING ACTIVITIES

EXHIBIT B

STANDARD CONTRACTUAL CLAUSES

Article 1
1.The standard contractual clauses set out in the Annex are considered to provide appropriate safeguards within the meaning of Article 46(1) and (2)(c) of Regulation (EU) 2016/679 for the transfer by a controller or processor of personal data processed subject to that Regulation (data exporter) to a controller or (sub-)processor whose processing of the data is not subject to that Regulation (data importer).
2. The standard contractual clauses also set out the rights and obligations of controllers and processors with respect to the matters referred to in Article 28(3) and (4) of Regulation (EU) 2016/679, as regards the transfer of personal data from a controller to a processor, or from a processor to a sub-processor.

Article 2
Where the competent Member State authorities exercise corrective powers pursuant to Article 58 of Regulation (EU) 2016/679 in response to the data importer being or becoming subject to laws or practices in the third country of destination that prevent it from complying with the standard contractual clauses set out in the Annex, leading to the suspension or ban of data transfers to third countries, the Member State concerned shall, without delay, inform the Commission, which will forward the information to the other Member States.

Article 3
The Commission shall evaluate the practical application of the standard contractual clauses set out in the Annex on the basis of all available information, as part of the periodic evaluation required by Article 97 of Regulation (EU) 2016/679.

Article 4
1. This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. Decision 2001/497/EC is repealed with effect from 27 September 2021.
3. Decision 2010/87/EU is repealed with effect from 27 September 2021.
4. Contracts concluded before 27 September 2021 on the basis of Decision 2001/497/EC or Decision 2010/87/EU shall be deemed to provide appropriate safeguards within the meaning of Article 46(1) of Regulation (EU) 2016/679 until 27 December 2022, provided the processing operations that are the subject matter of the contract remain unchanged and that reliance on those clauses ensures that the transfer of personal data is subject to appropriate safeguards.

ANNEX

STANDARD CONTRACTUAL CLAUSES

For the purposes of implementing the Commission Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.

Customer, as identified in the Master Agreement in relation to which this Exhibit B forms part of and applicable order(s).

(the data exporter)

And

OutSystems, as identified in the Master Agreement in relation to which this Exhibit B forms part of and applicable order(s).

(the data importer)

each a ‘party’; together ‘the parties’,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of personal data.

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 explorer, 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 beneficiary

(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 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
     (iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
     (iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
     (v) Clause 13;
     (vi) Clause 15.1(c), (d) and (e);
     (vii) Clause 16(e);
     (viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

(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 Union² (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

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

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

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

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

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

8.9 Documentation and compliance

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

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

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

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

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

Clause 9
Use of sub-processors
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 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 subjects³. 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.

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 OBLIGATION 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(⁴) ;
     (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). [For Module Three: 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 organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three:, 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 [for Module Three: 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.

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.). [For Module Three: 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. [For Module Three: 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 [for Module Three: 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) [For Modules One, Two and Three: 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.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] 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 (specify Member State).

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 (specify Member State).

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

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

¹ Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

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

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

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.

 

APPENDIX

ANNEX I

A. LIST OF PARTIES
Data exporter(s):
Name: Customer, as identified in the Master Agreement in relation to and applicable order(s)

Activities relevant to the data transferred under these Clauses: the usage of the software products and services associated with the OutSystems platform.

Signature and date:

Role: controller

Data importer(s):

Name: OutSystems, as identified in the Master Subscription Agreement with the Customer

Activities relevant to the data transferred under these Clauses:
processor is an information technology company providing software products and services associated with its proprietary software, the OutSystems Platform

Signature and date:

Role: processor

B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred: May include, as applicable, Personal Data relating to the following categories of Data Subjects:
Customers, business partners and services providers of Controller (who are natural persons).
Employees or representatives of Controller’s Customers, business partners and services providers (who are natural persons).
Employees, agents, advisors, contractors of Controller (who are natural persons).
Controller’s Users authorized by Controller to use the Services (who are natural persons).

Categories of personal data transferred: May include, as applicable, but is not limited to the following categories of Personal Data:
Identification data (name).
Contact details (such as postal address, phone number and e-mail).
Professional data (such as job title and name of the company).
Contract data (information regarding the OutSystems customer's order).
Usage data (such as data about the customer's device and how such device interact with OutSystems and OutSystems' services).
Location data (such as location derived from the IP address or data that indicates where that Controller or Controller customers’ is located with less precision, such as at a city or postal code level).
Content data (such as the content of the Controller and Controller’s Customers files and communications).
Credentials (such as passwords, passwords hints and similar security information used for authentication and account access to OutSystems' services).

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: Not applicable

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

Nature and purpose(s) of the data transfer and further processing: provision of the services by the processor to the controller 

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: during the duration of the agreement between the controller and the processor.

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

C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13.The supervisory authority of the exporter’s location, as the case may be:

ANNEX II

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

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

The data importer uses appropriate technical, organizational and administrative security measures to protect the personal data transmitted by the data exporter against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction. Data importer’s security measures are continually improved in line with technological developments.

The data importer has implemented access controls to ensure that the access and processing of the personal data is strictly limited to those individuals who need to know or access such personal data for the performance of their specific duties or tasks (need-to-know). The data importer has been certified and attested to confirm compliance with ISO 27001, ISO 27017 and ISO 27018 standards, by independent auditors.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.

The Sub-Processors shall use appropriate technical, organizational and administrative security measures to protect the personal data transmitted against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction.

ANNEX III

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors: as identified in the following List of Sub-Processors:
https://www.outsystems.com//-/media/files/legal/dpa-list-of-sub-processors.pdf

EXHIBIT C

INTERNATIONAL DATA TRANSFER ADDENDUM TO THE
EU COMMISSION STANDARD CONTRACTUAL CLAUSES

VERSION B1.0, in force 21 March 2022

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

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:

Table 4: Ending this Addendum when the Approved Addendum Changes

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

1. 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:

2. 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.

3. 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.

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

5. 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.

6. 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

1. 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.

2. 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.

3. 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

1. 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.

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

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

4. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.