EUROPEAN SERVICE ADDENDUM
THESE ADDITIONAL TERMS PERTAIN TO CUSTOMERS IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND OR THE UK (“EUROPEAN SERVICE ADDENDUM”). THIS EUROPEAN SERVICE ADDENDUM IS INCORPORATED INTO SERVICE AGREEMENTS WITH CUSTOMERS WHO RESIDE IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND OR THE UK. YOUR EXECUTION OF A CUSTOMER ORDER FOR SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE ADDITIONAL TERMS. YOU ACKNOWLEDGE AND AGREE THAT CENTRALREACH HAS THE RIGHT TO ESTABLISH TERMS FOR THE CONTINUED USE OF OUR SERVICES. ACCORDINGLY, CENTRALREACH RESERVES THE RIGHT TO MODIFY THESE TERMS FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. YOU AGREE THAT YOUR USE OF THE SERVICES CONSTITUTES YOUR AGREEMENT TO ANY SUCH MODIFICATION. TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH IN THE TERMS OF SERVICE AND ADDITIONAL AGREEMENTS AS APPLICABLE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF SERVICE AND OTHER ADDITIONAL AGREEMENTS AND THIS EUROPEAN SERVICE ADDENDUM, THE TERMS OF THIS EUROPEAN SERVICE ADDENDUM SHALL CONTROL.
- DATA PROCESSING UNDER THE EUROPEAN DATA PROTECTION LEGISLATION
As used herein, “European Data Protection Legislation” shall mean the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) (as amended or replaced from time to time), and any national implementing laws or regulations and secondary legislation, as amended from time to time and any other data protection, data security and privacy laws pertaining to residents of the European Economic Area, Switzerland or the UK.
To the extent that you are covered by the European Data Protection Legislation, you acknowledge and agree to the following:
- Both parties will comply with all applicable requirements of the European Data Protection Legislation. You acknowledge that Customer Content may constitute or include “personal data” under the GDPR.
- The parties acknowledge that for the purposes of the European Data Protection Legislation, you are the data controller and CentralReach is the data processor (where Data Controller and Data Processor have the meanings as defined in the European Data Protection Legislation). The categories of personal data and data subjects (as defined in the GDPR) are set out in the Appendix of this European Service Addendum.
- Without prejudice to the generality of Section 1.a. of this European Service Addendum, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of Customer Content to the United States for the duration and purposes of the Services. You also represent and warrant that you have all necessary rights and consents to collect all information that you provide through your use of the Services, and that you will use any such information collected only in strict compliance with the European Data Protection Legislation.
- Without prejudice to the generality of Section 1.a. of this European Service Addendum, CentralReach shall, in relation to any Customer Content processed in connection with the performance by CentralReach of the Services:
- process Customer Content only as required to provide you with the Services, and you agree that such processing is being done at your express request and with your express consent;
- ensure that CentralReach has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Customer Content and against accidental loss or destruction of, or damage to, Customer Content, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Customer Content, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Content can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
- ensure that all CentralReach personnel who have access to and/or process Customer Content are obliged to keep Customer Content confidential;
- process (directly or indirectly through one of our affiliates, under common control with us) Customer Content in the United States pursuant to, as applicable, the EU Standard Contractual Clauses (“EU SCCs”) (module two), attached at Exhibit A (part one), which is in the form approved by the European Commission, and the UK Addendum to the EU SCCs, attached at Exhibit A (part two) which are binding on you and CentralReach or other data transfer provisions as approved by a relevant supervisory authority from time to time which shall be agreed between CentralReach and you (as required by applicable European Data Protection Legislation); with such clauses hereby incorporated by reference to this European Service Addendum,
- except for the transfer of Customer Content to the United States or to one or more of our affiliates, under common control with us, who CentralReach may utilize as a subprocessor, and with respect to certain applications, CentralReach shall not transfer Your Content to any other jurisdiction outside of the European Economic Area, Switzerland and the UK unless CentralReach notifies you in writing of such transfer and, in this event, the following conditions shall be fulfilled:
- CentralReach has provided appropriate safeguards in relation to the transfer (including the EU SCCs and/or UK Addendum or other approved data transfer agreement);
- the data subject has enforceable rights and effective legal remedies;
- CentralReach has complied with obligations under the European Data Protection Legislation by providing an adequate level of protection to any of Customer Content that is transferred; and
- CentralReach has complied with reasonable instructions notified to us in advance by you with respect to the processing of Customer Content;
- assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the European Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, and you agree to promptly (and in any case, within any time period prescribed by law or regulation) notify us if any data subject requests removal of any personal information relating to such data subject;
- notify you without undue delay on becoming aware of a breach of Customer Content;
- at your written direction, delete, return or de-identify Customer Content and copies thereof on termination of the Services unless required by applicable law to store Customer Content; and
- maintain complete and accurate records and information to demonstrate our compliance with this clause.
- You acknowledge that CentralReach may utilize third-party integration partners to process Customer Content, and you hereby consent to such third-party processing. CentralReach shall remain fully liable to you for all acts or omissions of any third-party processor appointed by us pursuant to this clause, subject to applicable exclusions and limitations of liability set forth in the Terms.
- You agree that in lieu of the obligations set forth in this European Service Addendum, CentralReach may adopt any applicable controller-to-processor standard clauses or similar terms forming part of an applicable certification scheme.
- NOTICES PURSUANT TO EUROPEAN DATA PROTECTION LEGISLATION
Customer agrees that any request pursuant to Section 1 of this European Service Addendum shall be made in writing and sent to email@example.com.
Last Revision Date: September 1, 2022
Part A: European Standard Contractual Clauses
Module Two of the EU Standard Contractual Clauses
- Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) () for the transfer of personal data to a third country.
- The Parties:
- the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
- Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Third-party beneficiaries
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8 - Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e);
- Clause 9 - Module Two: Clause 9(a), (c), (d) and (e);
- Clause 12 - Module Two: Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18 - Module Two: Clause 18(a) and (b);
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
- Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
- Optional Docking clause
- An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
- Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
- The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
- Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
- The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
- 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.
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.
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.
- 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).
- Security of processing
- The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
- The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
- The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
- 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.
- 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:
- the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
- Documentation and compliance
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
- The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of noncompliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
- The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
- The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
- Use of sub-processors
- The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. () The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
- Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
- 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;
- refer the dispute to the competent courts within the meaning of Clause 18.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
- 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
- Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ();
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
- 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.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- 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).
- Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
- Obligations of the data importer in case of access by public authorities
- The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
- Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
- 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:
- Review of legality and data minimisation
- The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
- The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
- The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
- Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
- 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.
- 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.
- Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland (specify Member State).
- Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of Ireland (specify Member State).
- 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.
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
- LIST OF PARTIES
See details of Customer in the Service Agreement.
Signature and date: The signature and date of the Service Agreement is the deemed signature and date of this section.
Role (controller/processor): Controller......................................................................................................
See details of CentralReach in the Service Agreement.
Signature and date: The signature and date of the Service Agreement is the deemed signature and date of this section.
Role (controller/processor): Processor...................................................................................................
- DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Data subjects are your clients, students or others who receive treatment services from you.
Categories of personal data transferred
Personally identifiable data concerning the data subject such as name, address, contact information, insurance information, payment information and health and biometric data.
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.
Health and biometric data.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
…… Processing of data will be according to the functionality of the CentralReach service being used by the data exporter, such as processing for client record keeping, billing, insurance claims submission, health and biometric data gathered pursuant to assessments and treatment curriculums, clinical data reporting and related services.
Purpose(s) of the data transfer and further processing
For the provision of the Services. ………………………………………………………………………………………………………………..
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
…For the duration of the Services. …………………………………………………………………………………………………
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
………For the duration of the Services. ………………………………………………………………………………………………………..
- COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
Irish Data Protection Commissioner......................................................................................................
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA EXPLANATORY NOTE:
The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
See Security At CentralReach at https://centralreach.com/security/
LIST OF SUB-PROCESSORS
This Annex must be completed for Module Two, in case of the specific authorization of sub-processors (Clause 9(a), Option 1).
The controller has authorized the use of the following sub-processors:
Contact firstname.lastname@example.org for details of current sub-processors.
Part B: UK Addendum
Table 1: Parties
|Start date||See the Service Agreement.|
|The Parties||Exporter (who sends the Restricted Transfer)||Importer (who receives the Restricted Transfer)|
|Parties’ details||See Annex I of Part A||See Annex I of Part A|
|Key Contact||See Annex I of Part A||See Annex I of Part A|
|Signature (if required for the purposes of Section 2)||The signature and date of the Service Agreement is the deemed signature and date of this section.||The signature and date of the Service Agreement is the deemed signature and date of this section.|
Table 2: Selected Standard Contractual Clauses, Modules and Selected Clauses
|Addendum EU SCCs|| The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information: |
Reference (if any):
Other identifier (if any):
X 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 |
|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?|
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: See Annex I of Part A|
|Annex 1B: Description of Transfer: See Annex I of Part A|
|Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: See Annex II of Part A.|
|Annex III: List of Subprocessors (Modules 2 and 3 only): See Annex III of Part A.|
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: |
X neither Party
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 UK 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” or “UK Addendum” means this International Data Transfer Addendum which is made up of this UK Addendum incorporating the Addendum EU SCCs.
“Addendum EU SCCs” means 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” is set-out in Table 3.
“Appropriate Safeguards” means 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” means 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” means the Standard Contractual Clauses set-out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
“EU GDPR” means the EU General Data Protection Regulation 20016/679
“ICO” means the Information Commissioner.
“Restricted Transfer” means a transfer which is covered by Chapter V of the UK GDPR.
“UK” means the United Kingdom of Great Britain and Northern Ireland.
“UK Data Protection Laws” means 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” has the definition 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.
- 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 EU GDPR 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:
- 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
- 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:
- References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
- 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”;
- 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.”;
- 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”;
- 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;”
- 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;
- References to Regulation (EU) 2018/1725 are removed;
- References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
- The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
- Clause 13(a) and Part C of Annex I are not used;
- The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
- 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;”;
- Clause 17 is replaced with:
“These Clauses are governed by the laws of England and Wales.”;
- 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
- 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:
- makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
- reflects changes to UK Data Protection Laws;
- The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set-out in the revised Approved Addendum from the start date specified. 19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
- its direct costs of performing its obligations under the Addendum; and/or
- 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.
Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
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.
This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
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.