Skyfii GDPR Data Processing Addendum

Skyfii Data Processing Addendum

Last updated: 27 December 2022

This Data Processing Addendum (“DPA”) and its Exhibits are entered into by Skyfii (“Data Processor”) and Customer (“Data Controller”), and supplements the Customer Agreement (defined below) when Data Protection Laws apply to your use of the Skyfii Services to process Personal Data.

This DPA including its Exhibits is incorporated into the Customer Agreement(s) under which Skyfii has agreed to provide Services to you, which may be specified in your Customer Agreement. In case of any conflict or inconsistency with the terms of your Customer Agreement, this DPA will take precedence over the terms of the Customer Agreement to the extent that such conflict or inconsistency may arise. The term of this DPA will follow the term of the Customer Agreement.

This DPA is an agreement between you and the entity you represent (“Customer”, “you” or “your”) and Skyfii (“us” or “we”) or a reseller of the Services (as applicable), and reflects the parties’ agreement with respect to the terms governing the Processing of Personal Data under the Customer Agreement. In this DPA, a reference to the Customer Agreement is a reference to one of the following:

  • Skyfii Master Service Agreement (MSA);
  • Skyfii Services Agreement;
  • Skyfii Reseller Agreement;
  • Skyfii Customer License Terms – www.skyfii.io/customer-terms; or
  •  Any other agreement between Customer and Skyfii governing Customer’s use of the Skyfii Services,

each a “Customer Agreement” and referred to generically in this DPA as the “Agreement”.

THIS DPA INCLUDES:

  1. List of Sub-Processors, attached hereto as Exhibit 1.
  2. Standard Contractual Clauses, attached hereto as Exhibit 2.
    1. Annex I of the Appendix to the Standard Contractual Clauses, which includes specifics on the Personal Data transferred by the data exporter to the data importer.
    2. Annex II of the Appendix to the Standard Contractual Clauses, which includes a description of the technical and organisational security measures implemented by the data importer as referenced.
  1. The UK Addendum, attached hereto as Exhibit 3.
  1. Definitions

Terms not otherwise defined in this DPA will have the meaning as set out in the Customer Agreement. The term of this DPA will follow the term of your Customer Agreement.

CCPA” means the California Consumer Privacy Act, California Civil Code sections 1798.100 et seq, and its implementing regulations.

Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data and shall be deemed to include “Business” as defined in the CCPA. In this DPA the Customer (as defined in the Agreement) is the Controller.

Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the EU GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time; the UK GDPR; POPIA; LGPD; and CCPA.

Data Subject” means the natural, living individual to whom Personal Data relates and shall be deemed to include “Consumer” as defined in the CCPA.

Documentation” means the record of instructions, including all specifications, placed by or on behalf of Customer for the Services subject to the Agreement.

End Users” means visitors to Venues whose mobile devices are detected by WiFi and whose device detailed are logged and monitored by Skyfii; and individuals who register to use guest WiFi services provided by Customer at its premises, venues and locations

EU GDPR” means the General Data Protection Regulation (EU) 2016/679 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.

Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to depersonalising, blocking, deletion, making available).

LGPD” means the Brazilian General Personal Data Protection Law (as amended by Law No. 13.853 of 8 July 2019).

Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.

Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

Platform” means the technology platform developed and operated by Skyfii and used by Customers for purposes of visitor location analytics, to collect information from End Users and to interact with End Users.

POPIA” means the South African Protection of Personal Information Act 2013.

Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “process”, “processes” and “processed” will be construed accordingly.

Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller and shall be deemed to include “Service Provider” as defined in the CCPA. In this DPA, Skyfii (as defined in the Agreement) is the Processor.

Services” means the services to be provided by Skyfii to Customer as set out in the Agreement.

Skyfii” means the Skyfii entity specified in the relevant Agreement.

Standard Contractual Clauses” means the standard contractual clauses attached hereto as Exhibit 2 pursuant to the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 as may be amended, superseded or replaced.

UK Addendum” means the International Data Transfer Addendum issued by the UK Information Commissioner under section 119A(1) of the Data Protection Act 2018as may be amended, superseded or replaced.

UK GDPR” means the General Data Protection Regulation (EU) 2016/679 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 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.

Venues” means Customer premises, venues and locations at which WiFi services are offered to Individuals using the Platform.

WiFi Service” means the guest wireless internet access offered by Customer at a Venue using their wireless network together with the Platform.

  1. Details of the Processing
  1. Categories of Data Subjects: Categories of Data Subjects whose Personal Data will be Processed by Skyfii covers:
  • End Users
  • Employees, contractors and other workers of Customer
  • Employees, contractors and other workers of suppliers to Customer (such as Customer’s third-party Processors)
  • Other individuals whose Personal Data is provided to Skyfii or added to the Platform by Customer.
  1. Categories of Personal Data: Categories of Personal Data that may be Processed by Skyfii include:
  • Full name and prefix
  • Mobile number
  • Email address
  • Date of birth
  • Gender
  • Age
  • Social network identities and publicly available details
  • Postcode
  • Country or state of residence
  • Browsing device details, including the Media Access Control address
  • The time, date and location of registration by Data Subjects for the WiFi service
  • The duration and frequency of use of the WiFi service and visits to Venues by Data Subjects
  • The approximate location of Data Subjects’ browsing devices whilst at a Venue
  • Data Subjects’ internet browsing history whilst using the WiFi service
  • Data Subjects’ engagement with Customer’s social media posts and other social activity
  • Data Subjects’ demographic information
  • Data Subjects’ interests and likes
  1. Nature & Purpose of Processing: Skyfii will process the Personal Data for the purposes of providing the Services to Customer, the categories of Personal Data that will be processed will be dependent on the Services provided to the Customer.
  2. Duration of the Processing: Skyfii will process the Personal Data until the Service is terminated by Customer.
  1. Customer Responsibility
  1. The parties acknowledge and agree that Customer is the Controller of Personal Data and Skyfii is the Processor of that data. As regards its use of the Services, Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data.
  2. Without prejudice to the generality of clause 3.1, the Controller shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Processor for the duration and purposes of the Customer Agreement.
  3. For the avoidance of doubt, Controller’s instructions for the Processing of Personal Data shall comply with the Data Protection Law. This DPA is Customer’s complete and final instruction to Skyfii in relation to Personal Data and that additional instructions outside the scope of DPA would require prior written agreement between the parties. Instructions shall initially be specified in the Agreement and may, from time to time, thereafter, be amended, amplified or replaced by Controller in separate written instructions (as individual instructions).
  4. Controller shall inform Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
  1. Obligations of Processor
  1. Compliance with Instructions: Processor shall collect, process and use Personal Data only within the scope of Controller’s Instructions. If the Processor believes that an Instruction of the Controller infringes the Data Protection Law, it shall immediately inform the Controller without delay. If Processor cannot process Personal Data in accordance with the Instructions due to a legal requirement under any applicable European Union or Member State law, Processor will (i) promptly notify the Controller of that legal requirement before the relevant Processing to the extent permitted by the Data Protection Law; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which Processor is able to comply. If this provision is invoked, Processor will not be liable to the Controller under the Agreement for any failure to perform the applicable services until such time as the Controller issues new instructions in regard to the Processing.
  2. Security: Processor shall take the appropriate technical and organisational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, described under Annex II of the Appendix to the Standard Contractual Clauses. Such measures include, but are not be limited to:
  1. The prevention of unauthorised persons from gaining access to Personal Data Processing systems (physical access control);
  2. The prevention of Personal Data Processing systems from being used without authorization (logical access control);
  3. Ensuring that persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to accessing in accordance with their access rights, and that, in the course of Processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorisation (data access control);
  4. Ensuring that Personal Data cannot be read, copied, modified or deleted without authorisation during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control);
  5. Ensuring the establishment of an audit trail to document whether and by whom Personal Data have been entered into, modified in, or removed from Personal Data Processing systems (entry control);
  6. Ensuring that Personal Data is Processed solely in accordance with Controller’s instructions (control of instructions);
  7. Ensuring that Personal Data is protected against accidental destruction or loss (availability control).

Upon Controller’s request, Processor shall provide a current Personal Data protection and security programme relating to the Processing hereunder.

Processor will facilitate Controller’s compliance with its obligation to implement security measures with respect to Personal Data in accordance with the Data Protection Laws by (i) implementing and maintaining the security measures described under Appendix 2, (ii) complying with the terms of Section 4.4 (Personal Data Breaches); and (iii) providing the Controller with information in relation to the Processing in accordance with Section 5 (Audits).

  1. Confidentiality: Processor shall ensure that any personnel whom Processor authorises to process Personal Data on its behalf is subject to confidentiality obligations with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
  2. Personal Data Breaches: Processor will notify Controller as soon as practicable after it becomes aware of any of any Personal Data Breach affecting any Personal Data. At Controller’s request, Processor will promptly provide Controller with all reasonable assistance necessary to enable it to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Controller is required to do so under the Data Protection Law.
  3. Data Subject Requests: Processor will provide reasonable assistance, including by appropriate technical and organisational measures and taking into account the nature of the Processing, to enable Controller to respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Law with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law.  If such request is made directly to Processor, Processor will promptly inform Controller and will advise Data Subjects to submit their request to the Controller. Controller shall be solely responsible for responding to any Data Subjects’ requests. Controller shall reimburse Processor for the costs arising from this assistance.
  4. Sub-Processors: Processor shall be entitled to engage Sub-Processors to fulfil Processor’s obligations defined in the Agreement only with Controller’s written consent.  For these purposes, Controller consents to the engagement as Sub-Processors of Processor’s affiliated companies and the third parties listed in Exhibit 1. For the avoidance of doubt, the above authorisation constitutes the Controller’s prior written consent to the sub-Processing by Processor for purposes of Clause 8.8 of the Standard Contractual Clauses.

If the Processor intends to instruct Sub-Processors other than the companies listed in Exhibit 1, the Processor will notify Controller thereof in writing (by way of in-app notification in the Skyfii IO web portal) and will give Controller the opportunity to object to the engagement of the new Sub-Processors within 30 days after being notified. The objection must be based on reasonable grounds (e.g. if Controller proves that significant risks for the protection of its Personal Data exist at the Sub-Processor). If Processor and Controller are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective date of termination.

Where Processor engages Sub-Processors, Processor will enter into a contract with the Sub-Processor that imposes on the Sub-Processor the same obligations that apply to Processor under this DPA and meets the requirements of Data Protection Law. Where the Sub-Processor fails to fulfil its data protection obligations, Processor will remain liable to the Controller for the performance of such Sub-Processors obligations.

Where a Sub-Processor is engaged, Controller must be granted the right to monitor and inspect the Sub-Processor’s activities in accordance with this DPA and the Data Protection Law, including to obtain information from the Processor, upon written request, on the substance of the contract and the implementation of the data protection obligations under the sub-Processing contract, where necessary by inspecting the relevant contract documents.

  1. Data Transfers: Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Data will be transferred to Skyfii Group Pty Ltd (ACN 165 152 241) and other subsidiaries in Australia.
  1. EEA Transfers: The Standard Contractual Clauses (module 2) at Exhibit 2 will apply with respect to Personal Data that is transferred outside the EEA, either directly or via onward transfer, to Australia and to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the Data Protection Law).
  2. UK Transfers: The UK Addendum at Exhibit 3 which is hereby incorporated into this Agreement will apply with respect to Personal Data that is transferred outside the UK either directly or via onward transfer, to Australia and to any country not recognised by the UK Government as providing an adequate level of protection for personal data (as described in the Data Protection Law). (ii) Table 1 the UK Addendum will be deemed completed with the information set out in Annex 1 to the Standard Contractual Clauses; and (iii) any conflict between the terms of the Standard Contractual Clauses and the UK Addendum will be resolved in accordance with Section 10 and Section 11 of the UK Addendum.

If, in the performance of this DPA, Skyfii transfers any Personal Data to a Sub-Processor located outside of the UK or EEA, Skyfii shall, in advance of any such transfer, ensure that a legal mechanism to achieve adequacy in respect of that processing is in place.

  1. Deletion or Retrieval of Personal Data: Other than to the extent required to comply with Data Protection Law, following termination or expiry of the Agreement, Processor will delete all Personal Data (including copies thereof) processed pursuant to this DPA. If Processor is unable to delete Personal Data for technical or other reasons, Processor will apply measures to ensure that Personal Data is blocked from any further Processing.

Controller shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period of time set by Processor, the reasonable measures to return data or to delete stored data. Any additional cost arising in connection with the return or deletion of Personal Data after the termination or expiration of the Agreement shall be borne by Controller.

  1. Audits
  1. Controller may, prior to the commencement of Processing, and at regular intervals thereafter, audit the technical and organisational measures taken by Processor. For such purpose, Controller may:
  1. obtain information from the Processor;
  2. request Processor to submit to Controller an existing attestation or certificate by an independent professional expert; or
  3. upon reasonable and timely advance agreement, during regular business hours and without interrupting Processor’s business operations, conduct an on-site inspection of Processor’s business operations or have the same conducted by a qualified third party which shall not be a competitor of Processor.
  1. Processor shall, upon Controller’s written request and within a reasonable period of time, provide Controller with all information necessary for such audit, to the extent that such information is within Processor’s control and Processor is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
  1. POPIA Specific Provisions
  1. This Section 6 applies only where the Customer collects and processes Personal Data about Data Subjects in the Republic of South Africa (“SA Controller”).
  2. For the purposes of POPIA compliance, references to the following terms in this DPA shall be deemed to include the following POPIA definitions:
  1. “Data Controller” shall be deemed to include a reference to a “responsible party”;
  2. “Data Processor” shall be deemed to include a reference to an “operator”; and
  3. “Personal Data” shall be deemed to include a reference to “personal information”.
  1. This DPA shall form an operator agreement between Skyfii and an SA Controller.
  2. The parties agree that the SA Controller is the “responsible party” and Skyfii is an “operator” for the purposes of POPIA and that Skyfii acts under the mandate of the SA Controller when processing Personal Data on its behalf.
  3. The SA Controller shall be solely responsible for complying with the notification obligations set out at section 18 of POPIA.
  4. The obligation on Skyfii to implement security measures as set out at Section 4.2 of this DPA shall be deemed to be an obligation to take appropriate and reasonable technical and organisational measures for the purposes of section 19 of POPIA.
  5. The SA Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Data will be transferred to Skyfii Group Pty Ltd (ACN 165 152 241) and other subsidiaries in Australia and this DPA shall form a binding agreement for the purposes of section 72 of POPIA and:
  1. the security measures to be applied by Skyfii to such Personal Data, as set out at section 4.2, shall be reasonable and appropriate technical and organisational measures; and
  2. the same security measures shall be applied by Skyfii in respect of any onward transfer of Personal Data to any third country.
  1. General Provisions

In case of any conflict, this DPA shall take precedence over the regulations of the Agreement. Where individual provisions of this DPA are invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.

Upon the incorporation of this DPA into the Agreement, the parties indicated in Section 7 below (Parties to this DPA) are agreeing to the Standard Contractual Clauses (where and as applicable) and all appendixes attached thereto. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Exhibit 2, the Standard Contractual Clauses shall prevail.

  1. Parties to this DPA

This DPA is an amendment to and forms part of the Agreement.  Upon the incorporation of this DPA into the Agreement, Controller and Skyfii are each a party to this DPA.

The legal entity agreeing to this DPA as Controller represents that it is authorised to agree to and enter into this DPA and is agreeing to this DPA solely on behalf of the Controller.

  1. Signature

The parties agree that execution of the Agreement shall constitute execution of this DPA by both parties.

         

EXHIBIT 1

Sub-Processors

Skyfii’s Sub-Processors are listed at:

EXHIBIT 2

Standard Contractual Clauses

(Module 2: Controller to Processor)

SECTION I

Clause 1

Purpose and scope

  1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)[1] for the transfer of personal data to a third country.
  1. The Parties:
  1. 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
  2. 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”).

  1. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  2. 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

  1. 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.
  2. 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

  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
  1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
  2. Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
  3. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
  4. Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
  5. Clause 13;
  6. Clause 15.1(c), (d) and (e);
  7. Clause 16(e);
  8. Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
  1. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7

Docking clause

  1. 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.  
  2. 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.
  3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1        Instructions

  1. 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.
  1. 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

  1. 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.
  2. 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.
  3. 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.
  4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7        Sensitive data

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

8.8        Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union[2] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

  1. 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;
  2. 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;
  3. 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
  4. 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

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.  
  4. 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.
  5. 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

  1. The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
  2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.[3] The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
  3. 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.
  4. 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.
  5. 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

  1. 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.
  2. 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.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

  1. 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.
  2. 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.  
  3. 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:
  1. 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;
  2. refer the dispute to the competent courts within the meaning of Clause 18.
  1. 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.
  2. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  3. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

  1. 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.
  2. 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

  1. 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.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
  1. 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;
  2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards[4];
  3. 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.
  1. 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.
  2. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  3. 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).
  4. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.  

Clause 15

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

15.1        Notification

  1. 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:
  1. 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
  2. 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.
  1. 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.
  2. 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.).
  3. 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.
  4. 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

  1. 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).
  2. 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.
  3. 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

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. 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).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
  1. 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;
  2. the data importer is in substantial or persistent breach of these Clauses; or
  3. 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.

  1. 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.
  2. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

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

Clause 18

Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of the Republic of Ireland (specify Member State).
  3. 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.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

ANNEX I

A. LIST OF PARTIES

Data exporter(s):

Name: Customer

Address: As specified in the Agreement

Contact person’s name, position and contact details: Contact details for the data exporter are specified in the Agreement

Activities relevant to the data transferred under these Clauses: The services to be provided by Skyfii to the Customer as described in the Agreement.

Signature and date: The parties agree that execution of the Agreement shall constitute execution of these Clauses by both parties.

Role (controller/processor): Controller

Data importer(s):

Name: Skyfii

Address: As specified in the Agreement

Contact person’s name, position and contact details:

Michael Walker 5 Ward Avenue POTTS POINT NSW 2011 AUSTRALIA privacy@skyfii.com 

Data Protection Officer’s contact details:

Evalian Limited West Lodge Colden Common Winchester, United Kingdom, SO21 1TH dpo@evalian.co.uk 

Activities relevant to the data transferred under these Clauses: The services to be provided by Skyfii to the Customer as described in the Agreement.

Signature: The parties agree that execution of the Agreement shall constitute execution of these Clauses by both parties

Role (controller/processor): Processor


B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

  • Categories of data subjects set out under Section 2 of the Data Processing Agreement to which these Clauses are incorporated.

Categories of personal data transferred

  • Categories of personal data set out under Section 2 of the Data Processing Agreement to which these Clauses are incorporated.

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 parties do not anticipate the transfer of special categories of data.

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

  • Continuous

Nature of the processing

  • Categories of personal data set out under Section 2 of the Data Processing Agreement to which these Clauses are attached.

Purpose(s) of the data transfer and further processing

  • Provision of the Services to be provided by Skyfii to the data exporter as set out in the Skyfii Customer Agreements.

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

  • Term of the Skyfii Customer Agreements.

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

  • As set out above

C. COMPETENT SUPERVISORY AUTHORITY

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

  • The competent supervisory authority in the EU Member State in which the data exporter is established.

ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

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

  • Policies & Awareness

Information security policies and related operating procedures and staff information security training.

  • Access Control

Least privilege access control based on role-based access. Defined user access management process with ongoing auditing of user access permissions. Restricted privileged and administrative access based on need-to-know, with ongoing auditing of user access permissions.

  • Identification & Authentication

Identity and access management controls to ensure only uniquely identified, authorised and authenticated users are granted access to systems processing personal data.

  • Data Security

Data classification and labelling. Encryption of data at rest and in transit. Centralised key management including rotation.

  • Human Resources Security

Pre-employment background checks on prospective staff members who will have access to personal data, requiring them to be subject to obligations of confidentiality and having a disciplinary process in place to manage breaches of confidentiality or non-compliance with information security or data protection policies.

  • Physical Security

Implementing physical security controls to prevent unauthorised access to personal data and information systems used to process personal data.

  • Technical Security

Secure configuration standards and builds. Network perimeter security controls.  Anti-malware software deployed on all computers.

  • Incident Management

Information security incident management procedures.

  • Independent Assurance

Third party assurance reviews including penetration testing of appropriate information systems at least annually.  


ANNEX III – LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

The sub-processors listed at:

•        http://skyfii.io/sub-processors/ 


EXHIBIT 3

IDT Addendum

Module 2: Controller to Processor

Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

VERSION B1.0, in force 21 March 2022

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

Part 1: Tables

Table 1: Parties

Start date

Date of DPA

The Parties

Exporter (who sends the Restricted Transfer)

Importer (who receives the Restricted Transfer)

Parties’ details

As set out in Annex 1.A of the Standard Contractual Clauses

As set out in Annex 1.A of the Standard Contractual Clauses

Key Contact

As set out in Annex 1.A of the Standard Contractual Clauses

As set out in Annex 1.A of the Standard Contractual Clauses

Signature (if required for the purposes of Section ‎2)

The parties agree that execution of the Agreement shall constitute execution of this Addendum by both parties.

The parties agree that execution of the Agreement shall constitute execution of this Addendum by both parties.

Table 2: Selected SCCs, 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:

Date: Date of DPA

Reference (if any):  N/A

Other identifier (if any):  As provided at Exhibit 2 of this DPA.

Or

 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:

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: As set out in Annex I.A. of the Standard Contractual Clauses

Annex 1B: Description of Transfer: As per the Annex I.B. of the Standard Contractual Clauses

Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: As per the Annex II of the Standard Contractual Clauses

Annex III: List of Sub processors (Modules 2 and 3 only): As per the Annex III of the Standard Contractual Clauses

Table 4: Ending this Addendum when the Approved Addendum Changes

Ending this Addendum when the Approved Addendum changes

  1. Which Parties may end this Addendum as set out in Section 19:
  2. ☐ Importer
  3. ☐ Exporter

☒ neither Party

Part 2: Mandatory Clauses

Entering into this Addendum

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

Interpretation of this Addendum

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

Addendum

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

Addendum EU SCCs

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

Appendix Information

As set out in Table ‎3.

Appropriate Safeguards

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

Approved Addendum

The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.

Approved EU SCCs

The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.

ICO

The Information Commissioner.

Restricted Transfer

A transfer which is covered by Chapter V of the UK GDPR.

UK

The United Kingdom of Great Britain and Northern Ireland.

UK Data Protection Laws

All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

UK GDPR

As defined in section 3 of the Data Protection Act 2018.

  1. 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.
  2. 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.
  3. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
  4. 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.
  5. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

  1. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
  2. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
  3. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

  1. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
  1. 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;
  2. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
  3. 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.
  1. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
  2. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
  3. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
  1. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
  2. 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”;

  1. 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.”;

  1. 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”;

  1. 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;”

  1. 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;
  2. References to Regulation (EU) 2018/1725 are removed;
  3. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
  4. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
  5. Clause 13(a) and Part C of Annex I are not used;
  6. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
  7. 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;”;

  1. Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

  1. 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

  1. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

  1. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
  2. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
  3. From time to time, the ICO may issue a revised Approved Addendum which:
  1. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
  2. 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.

  1. 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:
  1. its direct costs of performing its obligations under the Addendum; and/or
  2. 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.

  1. 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.