Data Processing Addendum
An addendum to the SendBoard Terms of Service
Last updated: 19 June 2023
Introduction
This Data Processing Addendum (“DPA”) is an agreement between the Parties to the SendBoard Terms of Service.
This DPA supplements the SendBoard Terms of Service (as updated from time to time) and, unless the context clearly indicates otherwise:
the Parties hereto are SendBoard and the User, as set out in the SendBoard Terms of Service (the “Parties”);
terms defined in the SendBoard Terms of Service, when used in this DPA, shall bear the meanings assigned to them in the SendBoard Terms of Service; and
the terms and conditions of this DPA are incorporated in the SendBoard Terms of Service by reference.
The User has confirmed their agreement with the SendBoard Terms of Service in the Trello “Add the Power-Up” process. Such confirmation, as well as the Users’ continued use of Email for Trello and the Services, constitutes the Users’ agreement to the terms and conditions of the SendBoard Terms of Service and this DPA, in terms of which SendBoard will perform Services that require the Processing of Personal Data.
With this DPA, the Parties seek to regulate their compliance with the Data Protection Laws applicable to data protection, privacy and security in respect of Data Processed by SendBoard for and on behalf of the User in accordance with the SendBoard Terms of Service.
Definitions
Unless otherwise indicated by the context, the following expressions will bear the meanings assigned to them below and cognate expressions will bear corresponding meanings.
Affiliate: means any legal entity which now or hereafter controls, or which is controlling, or which is under common control of a Party, the term ”control“ meaning ownership, by the Party concerned, of at least 50% (fifty percent) of the issued shares or voting power at general meetings of the entity concerned, or in respect of which the Party concerned has the power to appoint and/or to dismiss a majority of the directors or otherwise to direct the activities of the entity concerned, and a reference to a Party in this DPA shall, where the context permits, include a reference to that Party’s Affiliate/s.
Data: means information capable of being processed digitally by electronic data processing means.
Data Protection Law/s: means the European Union General Data Protection Regulation (EU2016/679) (herein the “GDPR”), the United Kingdom Data Protection Act, 2018 and/or any equivalent legislation in the jurisdictions(s) where the Users’ Personal Data is Processed by SendBoard and any Sub-processor.
Data Subject: means a User who is an identified or identifiable natural person, being a person who can be identified directly or indirectly by reference to an identifier, such as a name, an identification number, 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.
Data Transfer: means the transfer, by any means, of Users’ Personal Data from the User to SendBoard, the onward transfer, by any means, of Users’ Personal Data from SendBoard to a Sub-processor, or the transfer, by any means, of Users’ Personal Data to or from a SendBoard or Sub-processor Affiliate, or the act of so transferring Data.
DPA: means this Data Processing Addendum and any addendum or annexure hereto.
Party/Parties: means either or both the persons set out in clause 1.1.1.
Personal Data: means Data relating to a Data Subject.
Processing/Process: means any and all data processing performed on Users’ Personal Data, whether by a User, SendBoard or a Sub-processor.
SendBoard: means the Party referred to in clause 1.1.1.
SendBoard Terms of Service: means the SendBoard Terms of Service referred to in clause 1.1.
Service/s: means a Service as defined in the SendBoard Terms of Service.
Sub-processor: means a person appointed in accordance with clause 4 to Process Users’ Personal Data for and on behalf of SendBoard.
User: means the Party referred to in clause 1.1.1.
Users’ Personal Data: means Personal Data transferred by Data Transfer from the User to SendBoard for Processing of that Personal Data by SendBoard for and on behalf of the User.
Processing of Users’ Personal Data
From time to time, the User will transfer Users’ Personal Data to SendBoard for Processing in accordance with the SendBoard Terms of Service, whereupon:
SendBoard shall Process the Users’ Personal Data in accordance with the SendBoard Terms of Service;
SendBoard shall Process the Users’ Personal Data in the manner determined in and in accordance with the Data Protection Laws; and
SendBoard shall not Process the Users’ Personal Data in any other way, unless otherwise instructed in writing by the User.
Sub-Processing
SendBoard shall be entitled to delegate one or more of the performances of any Service and the Processing of any Users’ Personal Data to an Affiliate or third-party service provider (herein “Sub-processor/s”) and the User hereby agrees that SendBoard shall be entitled, in its entire discretion and without further notification to the User:
to delegate any obligation arising out of the SendBoard Terms of Service to a Sub-processor; and
to appoint any Sub-processor to Process Users’ Personal Data for and on behalf of SendBoard.
SendBoard shall conclude a written agreement with each Sub-processor on terms substantially similar to the terms and conditions of this DPA and SendBoard shall be responsible to the User for the Sub-processor’s data protection obligations to the User under the terms of any such Sub-processor agreement.
Particulars of the SendBoard Sub-processors appointed by SendBoard from time to time are listed in the SendBoard Terms of Service and, in the event of SendBoard appointing any new Sub-processor:
SendBoard will update the list of Sub-processors and notify the User accordingly, in writing, prior to allowing any such new Sub-processor to Process Users’ Personal Data; and
in the event that the User, on reasonable data protection grounds, objects to the appointment of any such new Sub-processor, the User shall be entitled, as its sole and exclusive remedy, to terminate this DPA immediately, on written notice to SendBoard.
Data Subject Rights
On the written request of the User, SendBoard shall assist the User, promptly and to the fullest extent reasonably possible, in responding to any person exercising their rights as a Data Subject under the Data Protection Laws, by providing the User with the Data determined in the Data Protection Laws in the possession and under the control of SendBoard, which shall include such Data in the possession and under the control of a Sub-processor.
In the event that either Party receives a request from a person seeking to exercise their rights as a Data Subject:
the Party receiving the request shall promptly notify the other Party in writing;
the User shall deal with the response to the request in its entirety, unless the User specifically authorises SendBoard, in writing, to respond to all or part of the request;
the notification of the request, if given by SendBoard, shall provide sufficient details of the request and the Data Protection Law in terms of which the request is made, to enable the User to respond to the request; and
if the Data Protection Laws to which SendBoard is subject require a response from SendBoard, SendBoard shall notify the User of that legal requirement, in writing, to enable the User to direct the response of SendBoard by written directive, which written directive, SendBoard shall follow to the fullest extent permitted by the Data Protection Laws.
Security, Data Protection, Anti-corruption
SendBoard shall implement reasonable technical and organisational measures to ensure a level of security appropriate to the risks arising from Processing of the Users’ Personal Data in accordance with the Data Protection Laws, particularly risks arising from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Users’ Personal Data transferred, stored or otherwise Processed in accordance with the SendBoard Terms of Service or this DPA (herein a “Personal Data Breach”) and, in doing so shall take into account industry norms in respect of security measures and the cost of implementing such security measures in relation to the nature, scope, context and purposes of Processing of the Users’ Personal Data as well as the potential risk to the rights and freedoms of natural persons.
In the event of SendBoard becoming aware of a breach of security leading to a Personal Data Breach, SendBoard shall notify the User of the Personal Data Breach as soon as is reasonably possible, providing the User with sufficient information to permit the User to meet its obligations under the Data Protection laws to report the Personal Data Breach and to inform the affected Data Subjects of the Personal Data Breach.
SendBoard shall co-operate with the User and take such reasonable commercial steps as may be advised by the User, in writing, to assist in the investigation, mitigation and remediation of any Personal Data Breach.
In the event that the User undertakes or is required to undertake any form of data protection assessment, including a data protection audit or any similar assessment, regardless of whether the assessment is initiated or conducted by the User or a supervising or other data privacy authority appointed in accordance with any Data Protection Law, SendBoard shall:
co-operate with the User and take such reasonable steps as may be required by the User, in writing, to assist in the assessment and the implementation, if any, of the requirements or directives of the User or the supervising authority arising out of any such assessment; and
make available to the User, the supervising authority or both, all information and documentation required for compliance or to demonstrate compliance with the Data Protection Laws and/or the provisions of this DPA.
SendBoard shall implement and maintain in effect policies and procedures designed to ensure compliance by SendBoard, its Sub-processors and their respective directors, officers, employees, representatives and agents, with the anti-corruption laws in force in the jurisdictions in which SendBoard provides the Services, including any anti-bribery and anti-corruption law that might be applicable to the Parties, any Sub-processor and the Services and their access to and use of the Services, including the USA Foreign Corrupt Practices Act, 1977 (15 U.S.C. §§ 78dd-1), the United Kingdom Bribery Act, 2010 (c.23) as well as the applicable national laws of the countries of the European Union directed at implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD, 1997) (herein the “Anti-corruption Laws”).
In this regard, SendBoard warrants and undertakes:
that SendBoard and its associated parties are in compliance with and shall ensure compliance with the Anti-corruption Laws; and
that neither SendBoard nor its associated parties will act in any capacity in connection with or benefit from any person sanctioned under the Anti-corruption Laws.
In the event that SendBoard is required to or intends to undertake a Data Transfer of Users’ Personal Data extraterritorially (a Data Transfer to a location or country external to the previously disclosed country of residence of SendBoard):
SendBoard shall, prior to any such Data Transfer, notify the User, in writing, of the country and location to which the Users’ Personal Data will be transferred and where the Users’ Personal Data will be Processed; and
in such notification, give the User an undertaking that any such extraterritorial Data Transfer shall be subject to contractual provisions equivalent to the provisions of this DPA.
Standard Contractual Clause/s
SendBoard has opted voluntarily to adopt the Standard Contractual Clauses (“SCC/s”) issued by the European Commission, which are set out in the SCC Addendum annexed to this DPA, the SCC Addendum being incorporated in this DPA by reference.
The SCCs regulate Data Transfers between data controllers and data processors within the European Economic Area (EEA) in accordance with the applicable provisions of the GDPR and provide data protection safeguards in respect of the transfer of personal data to countries outside of the EEA.
In dealing with Personal Data, Users might act as either or both a data controller and a data processor, in respect of which:
in the event that the User acts as a data controller, the Controller-to-Processor provisions of the SCCs will apply to any Data Transfer undertaken by the User as controller;
in the event that the User acts as a data processor, the Processor-to-Processor provisions of the SCCs will apply to any Data Transfer undertaken by the user as a processor; and
the Parties agree that, in either event SendBoard will have little or no authority over the individual controller or controllers undertaking any such Data Transfer and, in these circumstances, the User or its controller or controllers, where one or more individual controllers undertake such Data Transfer for and on behalf of the User, the User shall fulfil and shall ensure that its controllers shall fulfil the obligations of SendBoard under the SCCs.
Confidentiality
Unless otherwise advised in writing and subject to the provisions of this clause, the Users’ Personal Data, even if not marked "confidential", shall be deemed to constitute confidential information (herein “Confidential Information”).
All Confidential Information shall be received and used only for the purposes intended by this DPA and shall be maintained in the strictest of confidence and each Party undertakes to protect and keep the Confidential Information in confidence using the same degree of care and safeguard as it uses to protect its own proprietary information of like importance.
In the event that SendBoard or any Sub-processor has any knowledge of information substantially identical to the Users’ Personal Data that is in its possession or in the public domain, such information shall not be subject to the restrictions on the use and disclosure of Confidential Information set out in this clause, provided SendBoard is able to provide convincing proof of the non-confidential nature of the information within a reasonable time of the Data Transfer of the Users’ Personal Data to SendBoard.
Deletion and return of Users’ Personal Data
In the event of the discontinuation of any Service, SendBoard shall, on the written request of the User:
delete the Users’ Personal Data associated with the discontinued Service; and
procure that its Sub-processors who are in possession of any such Users’ Personal Data, delete all such Users’ Personal Data;
provided that neither SendBoard nor its Sub-processors shall take any steps to implement the User request before the end of the calendar month next following the date of the User request.
Governing law and jurisdiction
This DPA will be governed by and be interpreted in accordance with the law of the Netherlands.
Invalidity
If any provision of this DPA is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the Parties agree to review the matter and if any valid and enforceable means is reasonably available to achieve the same object as the invalid or unenforceable provision, to adopt such means by way of variation of this DPA.
SendBoard may, in its entire discretion and at any time, update these Terms of Service and any annexure or addendum included herein by reference, including the SCC Addendum. We will notify you about significant changes by emailing Email for Trello account owners or by placing a prominent notice on the SendBoard website. Your continued use of Email for Trello after any such notification will be deemed to constitute your agreement with the updated Data Processing Addendum.
SCC Addendum
An addendum to the SendBoard Data Processing Addendum
Last updated: 19 June 2023
Introduction
This SCC Addendum supplements the SendBoard Data Processing Addendum (the “DPA”) (as updated from time to time), which is supplemental to the SendBoard Terms of Service, an agreement concluded between the Parties, and, unless the context clearly indicates otherwise:
the Parties hereto are SendBoard and the User, as set out in the SendBoard Terms of Service (the “Parties”);
terms defined in the SendBoard Terms of Service, when used in this SCC Addendum, shall bear the meanings assigned to them in the SendBoard Terms of Service; and
the terms and conditions of this SCC Addendum are incorporated in the SendBoard Terms of Service by reference.
The User has confirmed their agreement with the SendBoard Terms of Service in the Trello “Add the Power-Up” process. Such confirmation, as well as the Users’ continued use of Email for Trello and the Services, constitutes the Users’ agreement to the terms and conditions of the SendBoard Terms of Service and this SCC Addendum, in terms of which SendBoard will perform Services that require the Processing of Personal Data.
With this SCC Addendum the Parties regulate their compliance, generally, with the Data Protection Laws applicable to data protection, privacy and security in respect of Data Processed by SendBoard for and on behalf of the User in accordance with the SendBoard Terms of Service and, more specifically, with the GDPR.
The SCCs adopt a modular approach, in which Clauses applicable to each of four forms of data transfer are classified into Modules. In this SCC Addendum, the Module or Modules applicable to each of the Clauses is specified on the understanding that the provisions of that Clause shall apply to a data
transfer that falls within the data transfer type of the specified Module or Modules. The Modules are the following:
MODULE ONE: Transfer controller to controller — not applicable to SendBoard;
MODULE TWO: Transfer controller to processor — applicable to SendBoard;
MODULE THREE: Transfer processor to processor — applicable to SendBoard; and
MODULE FOUR: Transfer processor to controller — not applicable to SendBoard.
The Clauses applicable to Modules Two and Three are contained in the SendBoard GDPR Standard Contractual Clauses set out below in this SCC Addendum.
SendBoard may, in its entire discretion, update this SCC Addendum at any time — we will notify you about significant changes by emailing Email for Trello account owners or by placing a prominent notice on the SendBoard website. Your continued use of Email for Trello after any such notification will be deemed to constitute your agreement with the updated SCC Addendum.
STANDARD CONTRACTUAL CLAUSES
MODULE TWO: Transfer Controller to Processor
MODULE THREE: Transfer Processor to Processor
SECTION I
Clause 1 - Purpose and scope
a. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
b. The Parties:
i. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter "entity/ies") transferring the personal data, as listed in Annex I.A. (hereinafter each "data exporter"), and
ii. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each "data importer")
have agreed to these standard contractual clauses (hereinafter: "Clauses").
c. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
d. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2 - Effect and invariability of the Clauses
a. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
b. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3 - Third-party beneficiaries
a. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
i. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
ii. Clause 8 - 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);
iii. Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
iv. Clause 12 - 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 Two and Three: Clause 18(a) and (b).
b. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4 - Interpretation
a. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
b. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
c. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5 - Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6 - Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 - Optional - Docking clause
a. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
b. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
c. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8 - Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
MODULE TWO: Transfer controller to processor
8.1 Instructions
a. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
b. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter "personal data breach"). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
b. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
c. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
d. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person's sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter "sensitive data"), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter "onward transfer") if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
i. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
iii. the onward transfer is necessary for the establishment, exercise or 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.
MODULE THREE: Transfer processor to processor
8.1 Instructions
a. The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing..
b. The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
c. The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
d. The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and 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, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or 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 or the controller. 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 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, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
d. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (6) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
i. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
iii. the onward transfer is necessary for the establishment, exercise or 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 or the controller that relate to the processing under these Clauses.
b. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.
c. The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
d. The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
e. Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
f. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
g. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9 - Use of sub-processors
MODULE TWO: Transfer controller to processor
a. GENERAL WRITTEN AUTHORISATION. The data importer has the data exporter's general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least fourteen (14) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
b. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
c. The data importer shall provide, at the data exporter's request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
d. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor's obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
e. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
MODULE THREE: Transfer processor to processor
a. GENERAL WRITTEN AUTHORISATION. The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub processors at least thirty (30) days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
b. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. 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
MODULE TWO: Transfer controller to processor
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.
MODULE THREE: Transfer processor to processor
a. The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
b. The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and 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 controller, as communicated by the data exporter.
Clause 11 - Redress
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
a. [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
b. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14 - Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
a. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
b. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
i. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
iii. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
c. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
d. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
e. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [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
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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.
[For Module Three: The data exporter shall forward the notification to the controller.]
b. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
c. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [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. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
e. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17 - Governing law
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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 the Netherlands.
Clause 18 - Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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 The Netherlands.
c. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
d. The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX
ANNEX I
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Data exporter(s):
1. SendBoard (a division of Codeo BV)
Address:
Fred. Roeskestraat 115,
1076EE, Amsterdam
The Netherlands
Contact Person:
Name: Mark Fowles (Director)
Phone: +27 31 765 3679
Email: hello@sendboard.com
Activities relevant to the data transferred under these Clauses:
Transfer of data from and to Users in accordance with the Terms of Service agreement concluded as between SendBoard and the User concerned (the “SendBoard Terms of Service”) (to which these Standard Contractual Clauses are annexed), each User being identified as such in the SendBoard Terms of Service;
Transfer of data in accordance with the SendBoard Terms of Service, from and to the data sub-processors listed in the SendBoard list of Sub-Processors that is accessible by way of the SendBoard Terms of Service.
Role:
Processor
2. User/s
One or more of the Users identified as such in the SendBoard Terms of Service.
Address:
The address provided by the User and recorded by SendBoard in the SendBoard on-line User registration process in which the User registers as a User of Email for Trello and the Email for Trello Power-Up through the “Add the Power-Up” facility on the SendBoard website at www.sendboard.com, as amended by the User from time to time.
Contact Person:
The User or the User’s representative
The name and contact details of the User or User’s representative are as recorded by the User in the SendBoard on-line User Registration process and, where the User is represented by a third party acting as an agent for the User in the SendBoard on-line User Registration process, the User’s contact details are as recorded by such third party — SendBoard will make the name and contact details of Users/User representatives available in accordance with the SendBoard Terms of Service and these Clauses.
Activities relevant to the data transferred under these Clauses:
Transfer of data, in accordance with the SendBoard Terms of Service, pertaining to persons (individuals and collectives) with whom the User communicates using the Email for Trello Power-Up.
Role:
Controller (in respect of User data and processor in respect of data pertaining to persons with whom the User communicates using the email for Trello Power-Up.
Data importer(s):
1. SendBoard (a division of Codeo BV)
The identity, contact details, relevant activities and role of SendBoard as data importer are as set out above.
2. User/s:
The identity, contact details relevant activities and role of SendBoard of the User/s as data importer are as set out above.
Signature
By concluding the SendBoard Terms of Service in the SendBoard on-line User registration process and using the Services as defined in the SendBoard Terms of Service, the data exporter/s and data importer/s are deemed to have signed these Clauses.
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Categories of data subjects:
The categories of data subjects whose personal data is transferred are as set out in the Data Processing Addendum annexed to and incorporated in the SendBoard Terms of Service (the “DPA”).
Categories of personal data transferred:
The categories of personal data transferred are as set out in the DPA.
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:
The personal data transferred by the data exporter/s and data importer/s identified above might include sensitive personal data, as instructed by Users from time to time, in accordance with the DPA.
Frequency of transfer:
The frequency of data transfer is determined in accordance with User instructions as set out in the DPA.
Nature of the processing:
The nature of processing is as described in the DPA.
Purpose(s) of data transfer and further processing:
The data is transferred and processed for the purpose of providing the Services set out in the SendBoard Terms of Service.
Data Retention Period:
The period for which the personal data will be retained is determined in accordance with the DPA.
Nature and duration of processing:
In respect of transfers to sub-processors, the subject matter, nature and duration of processing is as set out in the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
The data exporter’s competent supervisory authority/ies will be determined in accordance with the GDPR.
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
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 technical and organizational measures (including the certifications held by the data importer) as well as the scope and the extent of the assistance required to respond to data subjects’ requests are as described in the DPA.
Description of the technical and organisational measures to be taken by the sub-processors to be able to provide assistance to the controller and for transfers from a processor to a sub-processor, to the data exporter.
The technical and organisational measures that the data importer will impose on sub-processors are as described in the DPA.
ANNEX III – LIST OF SUB-PROCESSORS
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
The controller has authorised the use of the sub-processors listed in the SendBoard List of Sub-Processors that is accessible by way of the SendBoard Terms of Service.
The sub-processors process data for and on behalf of SendBoard in accordance with a clear delimitation of responsibilities, as set out in the DPA.