Data Processing Addendum

This Data Processing Addendum (“DPA”) is made a part of and is subject to the EPSILON3, INC. Software and Services License Agreement by and between Epsilon3, Inc. (“Epsilon3”) and the Licensee that has registered to use the Services.   Epsilon3 and Licensee are hereinafter collectively referred to as the “Parties” or each individually as a “Party”.

IMPORTANT - READ CAREFULLY. THIS DPA CAREFULLY. IT SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN THE PROCESSING OF PERSONAL DATA UNDER THE SOFTWARE AND SERVICES LICENSE AGREEMENT BETWEEN EPSILON3”  AND YOU AS THE LICENSEE UNDER THAT AGREEMENT.  IF YOU DO NOT AGREE TO THIS DPA, THEN YOU SHOULD NOT PROCEED WITH SETTING UP YOUR ACCESS TO EPSILON3. DO NOT CLICK ANY BUTTON TO SET UP ACCESS TO EPSILON3 ON ANY PAGE RUN BY EPSILON3 OR ITS PAYMENT PROCESSOR (SUCH AS STRIPE) UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF DPA  AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS DPA. IF YOU CONTINUE TO SET UP ACCESS FOR EPSILON3, YOU WILL BE GRANTED ACCESS TO THE SERVICES, AND THIS DPA WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).

Whereas:

(A)         Epsilon3 and Licensee entered into the EPSILON3, INC. Software and Services License Agreement (the “Principal Agreement”) which may involve Processing of Personal Data of Data Subjects subject to Data Protection Laws in the context of the Services.

(B)         This DPA is hereby incorporated into the Principal Agreement between Epsilon3 and Licensee.

(C)         In accordance with Data Protection Laws, the Parties enter into this DPA which shall govern the Processing of Personal Data of Data Subjects subject to Data Protection Laws in the context of the Services.

NOW, THEREFORE, the Parties agree as follows:

1.     Definitions

In this DPA, save where the context requires otherwise, the following terms have the following meaning:

“Applicable Law” shall mean all regional, national and international applicable laws, orders, statutes, codes, regulations, ordinances, decrees, rules, subordinate legislation, treaties, directives, bylaws, standards or other requirements with similar effect of any governmental or regulatory authority, each as updated from time to time which apply to Licensee or Epsilon3 in the circumstances governed by this DPA, including Data Protection Laws.

“CCPA” means the California Consumer Privacy Act and its applicable regulations.

“Licensee” shall mean the party entering into this DPA with Epsilon3.

“Licensee Data” shall have the meaning given to the term under the Principal Agreement. Licensee Data may include Personal Data.

“Licensee” means the entity which determines the purposes and means of the Processing of Personal Data.

“Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Licensee’s Personal Data transmitted, stored or otherwise Processed by Epsilon3 or its Sub-processors.

“Data Protection Laws” means all laws and regulations (including, without limitation, EU Data Protection Laws, the UK Data Protection Laws  and the CCPA), applicable to Epsilon3’s or a Sub-processor’s Processing of Personal Data under the Principal Agreement.

“Data Subject” means the identified or identifiable natural person to whom Personal Data relates.

“Europe” or “EU” means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.

“EU Data” means Personal Data that is subject to the protection of EU Data Protection Laws.

“EU Data Protection Laws” means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”); (ii) applicable national implementations of the GDPR; (iii) the United Kingdom Data Protection Act 2018 and the GDPR as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.

“Personal Data” means any information relating to an identified or identifiable natural person included in Licensee Data, which is protected under Data Protection Laws and Processed by Epsilon3 or a Sub-processor under the Principal Agreement. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, 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.

“Processing” (or “Processed” or “Process”) means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Epsilon3” means the entity which Processes Personal Data on behalf of the Licensee.

“Standard Contractual Clauses” shall mean the Standard Contractual Clauses approved by the European Commission in decision 2021/914 for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, attached hereto and incorporated herein as Schedule 4.

“Services” shall mean the services described in the Principal Agreement.

“Sub-processor” shall mean any third-party Epsilon3 engaged by Epsilon3 to Process Personal Data in order to provide the Services under the Principal Agreement. 

“Supervisory Authority” means (a) an independent public authority which is established by an EU member state pursuant to the GDPR, (b) for the United Kingdom, the Information Commissioner’s Office (“ICO”), or (c) other independent competent public authority established or recognized under Data Protection Laws.

“UK Data” means Personal Data that is subject to the protection of UK Data Protection Laws.

“UK Data Protection Laws” means the United Kingdom Data Protection Act 2018, as amended and the UK GDPR.

“Worker” shall mean any employee, staff member, agency worker or other full time or temporary, paid or unpaid person working for Epsilon3.

2.     Introduction

2.1.  This DPA governs the manner in which Personal Data shall be Processed. Epsilon3 is the processor of Personal Data and Licensee is the controller of Personal Data under this DPA and the Principal Agreement.

2.2.  The details of the Processing operations provided by Epsilon3 - in particular, the subject matter of the Processing, the duration of the Processing, the nature and purpose of the Processing, the types of Personal Data Processed and the categories of Data Subjects Processed under this DPA - are further specified in Schedule 2 below.

3.     General Personal Data Obligations

3.1.  The Parties shall comply with the terms of this DPA, and each Party is responsible for compliance with its respective obligations under applicable Data Protection Laws.

3.2.  Epsilon3 shall Process Personal Data on behalf of Licensee only in accordance with this DPA and documented instructions received from Licensee. Licensee hereby instructs Epsilon3 to Process Personal Data; (i) in accordance with the Principal Agreement and applicable Order Form(s), including to maintain and provide the Services; (ii) to comply with other documented reasonable instructions provided by Licensee (e.g., via email) where such instructions are consistent with the terms of the Principal Agreement; and (iii) where required by Applicable Law. Licensee’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Epsilon3 shall notify Licensee about any instruction from Licensee which, in Epsilon3’s opinion, infringes Data Protection Laws.

3.3.  With respect to “Personal Information” of a “Consumer” under the CCPA, Epsilon3 shall only process such Personal Data as a Services Provider on Licensee’s behalf for one or more Business Purposes described in the Agreement and shall be prohibited from retaining, using or disclosing such Personal Data other than for the specific Business Purposes, including retaining, using or disclosing such Personal Information for a Commercial Purpose other than performing the Business Purposes described in the Principal Agreement, except as otherwise permitted by the CCPA. Epsilon3 is further prohibited from retaining, using or disclosing the Personal Data that it collects, pursuant to the Principal Agreement, outside the direct business relationship with Licensee, unless expressly permitted by the CCPA or the Agreement. Epsilon3 shall comply with all applicable sections of the CCPA, including providing the same level of privacy protection as required of a business by the CCPA, assisting Licensee in responding to and complying with consumers’ requests made pursuant to the CCPA and implementing reasonable security procedures and practices appropriate to the nature of the  Personal Data to protect the  Personal Data from unauthorized or illegal access, destruction, use, modification or disclosure in accordance with Civil Code section 1798.81.5. Epsilon certifies that it understands and will comply with the restrictions set forth in this subsection.  Licensee shall have the right to take reasonable and appropriate steps to ensure that Epsilon3 uses the Personal Data that it collects pursuant to the Agreement in a manner consistent with Licensee’s obligations under the CCPA and the right, upon reasonable notice, to take reasonable and appropriate steps to stop and remediate Epsilon3’s unauthorized use of  Personal Data. This subsection 3.3 shall not be an admission that sharing of Personal Information between Licensee and Epsilon3 constitutes a Sale.  The terms “Business,” “Business Purpose,” “Commercial Purposes,” “Consumer,” “Personal Information,” “Sell,” “Sale” and “Services Provider” as used in this subsection 3,3 have the meanings defined in the CCPA. 

3.4.  If Epsilon3 is legally required to Process Personal Data otherwise than as instructed by Licensee, it shall inform Licensee before such Processing occurs, unless the law requiring such Processing prohibits Epsilon3 from informing Licensee on an important ground of public interest, in which case it shall notify Licensee as soon as that law permits it to do so.

3.5.  Additional instructions outside the scope of this DPA (if any) shall require prior written agreement between Epsilon3 and Licensee, including agreement on any additional fees payable by Licensee to Epsilon3 for carrying out such instructions.

3.6.  Epsilon3 Workers: (i) who have access to Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (ii) shall Process Personal Data only as instructed to by Licensee, unless otherwise required to do so by Data Protection Laws; and (iii) shall be provided training as necessary from time to time with respect to Epsilon3’s obligations under this DPA and under Data Protection Laws.

3.7.  Epsilon3 will not publish, disclose, divulge or otherwise permit third parties to access any Personal Data, except, in each case, in accordance with the Principal Agreement and this DPA (including as necessary to maintain and provide the Services and to Sub-processors in accordance with this DPA), with Licensee’s consent or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order).

3.8.  At Licensee’s cost, Epsilon3 will cooperate and assist Licensee with any data protection impact assessments required under Data Protection Laws or with any regulatory consultations that Licensee is legally required to make in respect of Personal Data, taking into account the nature of the Processing and the information made available to Epsilon3.

3.9.  Upon Licensee's written request, at Licensee’s cost, Epsilon3 will provide reasonable assistance to Licensee in the event of an investigation by or request from any regulator, including a Supervisory Authority, or similar authority, if and to the extent that such investigation or request relates to Personal Data. Epsilon3 will take steps reasonably requested by Licensee to assist Licensee in complying with any obligations in connection with such an investigation or request.

4.     Licensee Obligations

4.1.  Licensee agrees and represents that:

4.1.1.It shall have sole responsibility for the accuracy, quality and legality of Personal Data and the means by which Licensee acquired Personal Data;

4.1.2.It will provide notice of sharing of Personal Data with Epsilon3 consistent with the requirements of the  Data Protection Laws and obtain all consents required under Data Protection Laws to permit the processing of Personal Data by Epsilon3 under the Principal Agreement;

4.1.3.It has a lawful basis for processing of Personal Data under the  Data Protection Laws;

4.1.4.All instructions from Licensee to Epsilon3 with respect to processing of Personal Data shall comply with  Data Protection Laws;

4.1.5.It shall promptly inform Epsilon3 of (a) any non-compliance by Licensee, its employees or contractors with the Agreement or the provisions of the UK Data Protection Laws relating to the protection of Personal Data processed under the Agreement; (b)  any legally binding request for disclosure of Personal Data by a law enforcement authority, unless otherwise prohibited, such as in order to preserve the confidentiality of an investigation by the law enforcement authorities; and (c) any relevant notice, inquiry or investigation by a supervisory authority or claim by a Data Subject relating to Personal Data.

5.     Sub-processors

5.1.   Licensee agrees that Epsilon3 may use Sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services.  To extent approval of such Sub-processors is required by Data Protection Laws, Epsilon3 shall submit such Sub-processors to Licensee for approval, not to be unreasonably withheld.

5.2.  Where Epsilon3 engages a Sub-processor to carry out specific Processing activities (on behalf of Licensee), it shall do so by way of a written contract that provides for substantially similar data protection obligations as those binding Epsilon3 under this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. Epsilon3 conducts appropriate due diligence on its Sub-processors.

5.3.  Epsilon3 shall remain fully responsible to Licensee for the performance of the Sub-processor’s obligations under its contract with Epsilon3 and for any acts or omissions of the Sub-processors that cause Epsilon3 to breach any of Epsilon3’s obligations under this DPA.

6.     Data Transfers

6.1.  Data Exports from the United Kingdom. Where Personal Data is transferred from the United Kingdom to a country outside of the United Kingdom, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses VERSION B1.0, in force 21 March 2022 shall apply(“Approve Addendum”).  The information required for Tables 1 to 3 of Part One of the Approved Addendum is set out in Schedule 2 of this DPA (as applicable). For the purposes of Table 4 of Part One of the Approved Addendum, neither party may end the Approved Addendum when it changes.  

6.2.  Data Exports from the EU. Where  EU Data is transferred outside of the EU, the Standard Contractual Clauses set forth in Schedule 4 below (“SCCs”), subject to the additional terms in Schedule 3, shall apply to transfers to countries which do not ensure an adequate level of data protection within the meaning of EU Data Protection Laws, to the extent such transfers are subject to such EU Data Protection Laws.

6.3.   Data Exports from Switzerland. For data transfers governed by Swiss Data Protection Laws, the Standard Contractual Clauses also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity. In such circumstances, general and specific references in the Standard Contractual Clauses to GDPR or EU or Member State Law shall have the same meaning as the equivalent reference in Swiss Data Protection Law.

7.     Notification of Access Requests and Complaints

7.1.  Epsilon3 shall, to the extent legally permitted, promptly notify Licensee of any Data Protection Communication it receives. “Data Protection Communication” shall mean (i) any request received directly by a Party from a Data Subject to exercise the Data Subject’s rights under Data Protection Laws (e.g., right of access or have copies of Personal Data, right to rectification, restriction of Processing, erasure, data portability, object to the Processing, or its right not to be subject to an automated individual decision making pertaining to his or her Personal Data); or (ii) any complaint or allegation made to a Party relating to Personal Data, either from a Data Subject, a Supervisory Authority or other third party.

7.2.  Epsilon3 shall not respond to a Data Protection Communication it receives, unless Epsilon3 is authorized to do so by Licensee or Epsilon3 is legally compelled to respond.

7.3.  Where Epsilon3 is compelled to respond to a Data Protection Communication, unless prohibited by law, it shall permit Licensee to make representations and/or participate in the response process to ensure compliance with Data Protection Laws.

7.4.  Licensee is responsible for responding to a Data Protection Communication received directly by Licensee by using its own access to the relevant Personal Data. If Licensee is unable to access the relevant Personal Data after reasonable efforts, Epsilon3 will, at Licensee’s request, and at Licensee’s cost, provide reasonable assistance to Licensee in responding to any such Data Protection Communication directly received by Licensee to the extent the response to such Data Protection Communication is required under Data Protection Laws. To the extent legally permitted, Licensee shall be responsible for any costs arising from Epsilon3’s provision of such assistance.

8.     Data Security Requirements

8.1.  Epsilon3 shall, with regard to the state of the art and costs of implementation as well as taking into account the nature, scope, context and purposes of the Processing and the risk of varying likelihood and severity for the rights and freedoms of individuals, implement, maintain and comply with comprehensive information and network security programs, practices and procedures that govern the Services to ensure a level of security appropriate to the risk.

8.2.  In assessing the appropriate level of security, Epsilon3 shall take into account the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.

8.3.  Epsilon3 implements appropriate technical and organizational measures for the protection of Personal Data as detailed in Schedule 1.

9.     Data Breach

9.1.  Epsilon3 shall notify Licensee without undue delay after becoming aware of a Data Breach. In the event of a Data Breach, Epsilon3 shall provide Licensee with all reasonable assistance in investigating and mitigating the adverse effects of any such Data Breach. Epsilon3 will also provide all reasonable assistance to Licensee to enable Licensee to comply with its obligations under Data Protection Laws to notify the competent Supervisory Authority and the affected Data Subjects, taking into account the nature of Processing and the information available to Epsilon3.

10.  Audits

10.1.  Licensee may audit Epsilon3’s compliance with its obligations under this DPA up to once per year; additionally, to the extent required by Data Protection Laws, including where mandated by Licensee’s Supervisory Authority, Licensee or Licensee’s Supervisory Authority may perform more frequent audits of the procedures relevant to the protection of Licensee’s Personal Data (collectively, “Licensee Audit”). Epsilon3 will contribute to such Licensee Audits by providing Licensee or Licensee’s Supervisory Authority with the information and assistance reasonably necessary to conduct the Licensee Audit, including any relevant records of Processing activities applicable to the Services ordered by Licensee.

10.2.  If a third party is to conduct the Licensee Audit, the third party must be mutually agreed to by Licensee and Epsilon3 (except if such third party is a competent Supervisory Authority). Epsilon3 will not unreasonably withhold its consent to a third-party auditor requested by Licensee. The third party must execute a written confidentiality agreement acceptable to Epsilon3 or otherwise be bound by a statutory confidentiality obligation before conducting the Licensee Audit.

10.3.  To request a Licensee Audit, Licensee must submit a detailed proposed audit plan to Epsilon3 at least four weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Epsilon3 will review the proposed audit plan and provide Licensee with any concerns or questions (for example, any request for information that could compromise Epsilon3 security, privacy, employment or other relevant policies). Epsilon3 will work cooperatively with Licensee to agree on a final audit plan. Before the commencement of any Licensee Audit, Licensee and Epsilon3 shall mutually agree upon the scope, timing, and duration of the Licensee Audit.

10.4.  If the requested audit scope is addressed in a SSAE 18/ISAE 3402, ISO or similar audit report or certification issued by a qualified third party auditor within the prior twelve months and Epsilon3 provides such report or certification to Licensee confirming there are no known material changes in the controls audited, Licensee agrees to accept the findings presented in the third party audit report or certification in lieu of requesting an audit of the same controls covered by the report or certification.

10.5.  The Licensee Audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Epsilon3’s health, safety, security or other relevant policies, and may not unreasonably interfere with Epsilon3’s business activities or operations. Nothing in this Section 10 shall require Epsilon3 to breach its obligations under Applicable Law or breach its confidentiality, security or privacy obligations to any customers, employees or third parties.

10.6.  Licensee will provide Epsilon3 any audit reports generated in connection with any Licensee Audit, unless prohibited by Applicable Law or otherwise instructed by a Supervisory Authority. Licensee may use the audit reports only for the purposes of meeting Licensee’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA. The audit reports are Confidential Information of the Parties under the terms of the Principal Agreement.

10.7.  Any Licensee Audits are at Licensee’s expense. The Parties will negotiate in good faith with respect to any charges or fees that may be incurred by Epsilon3 to provide assistance with a Licensee Audit that requires the use of resources different from or in addition to those required for the provision of the Services. Before the commencement of a Licensee Audit, Licensee and Epsilon3 shall mutually agree upon the reimbursement rate for which Licensee shall be responsible for any time expended for any such Licensee Audit. All reimbursement rates shall be reasonable, taking into account the resources expended by Epsilon3.

11.  Return and Deletion of Personal Data

Epsilon3 will delete or return all Licensee Data, including Personal Data, on termination or expiration of the Principal Agreement in accordance with the Principal Agreement. Until all Personal Data is deleted or returned, Epsilon3 shall continue to ensure compliance with this DPA. If Applicable Law prohibits the return or deletion of Personal Data, Epsilon3 will continue to ensure compliance with this DPA and will only Process Personal Data to the extent and for as long as required under Applicable Law.

12.  Requests for Personal Data from Governmental Bodies

12.1.  To the extent permitted by Applicable Law, if Epsilon3 receives a valid and binding order (“Request”) from any governmental body (“Requesting Party”) for disclosure of Personal Data, Epsilon3 will use every reasonable effort to redirect the Requesting Party to request Personal Data directly from Licensee. As part of this effort, Epsilon3 may provide Licensee’s basic contact information to the Requesting Party.

12.2.  If compelled to disclose Personal Data to a Requesting Party, Epsilon3 will: (a) give Licensee reasonable notice of the Request to allow Licensee to seek a protective order or other appropriate remedy, if Epsilon3 is legally permitted to do so. If Epsilon3 is prohibited from notifying Licensee about the Request, Epsilon3 will use all reasonable and lawful efforts to obtain a waiver of prohibition, to allow Epsilon3 to communicate as much information to Licensee as soon as possible; and (b) to the extent permitted by Applicable Law, challenge any overbroad or inappropriate Request (including where such Request conflicts with the law of Europe).

12.3.  If, after exhausting the steps described above in this Section, Epsilon3 remains compelled to disclose Personal Data to a Requesting Party, Epsilon3 will disclose only the minimum amount of Personal Data necessary to satisfy the Request.

12.4.  Nothing in this Section restricts Licensee’s Data Subjects from exercising their rights under the GDPR, including their rights to compensation from Epsilon3 for material or non-material damage under, and in accordance with, Article 82 of the GDPR.

13.  Liability

The liability of each Party under this DPA shall be subject to the exclusions and limitations of liability set out in the Principal Agreement. Any reference to “limitation of liability” of a Party in the Principal Agreement shall be read to mean the aggregate liability of a Party and all of its Affiliates under the Principal Agreement and this DPA.

14.  Miscellaneous

14.1.  The Processing of Personal Data under this DPA is governed by the laws applicable to the Principal Agreement. Any disputes between the Parties relating to the Processing of Personal Data under this DPA will be subject to the exclusive jurisdiction of the courts specified in the Principal Agreement.

14.2.  Unless stated otherwise, each Party shall perform its obligations under this DPA at its own cost.

14.3.  In the event of inconsistencies between the provisions of this DPA and other agreements between the Parties, including but not limited to the Principal Agreement, the provisions of this DPA shall prevail.

14.4.  This DPA may only be modified by a written amendment signed by authorized representatives of each of the Parties.

14.5.  This DPA will become effective as of the date the Parties have executed it and, notwithstanding expiry of the Term of the Principal Agreement, will remain in effect until, and will automatically expire upon, deletion of all Personal Data by Epsilon3 and/or any applicable Sub-processors.

14.6.  If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provision of this DPA, and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.

14.7.  This DPA may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

IN WITNESS WHEREOF, Epsilon3 and Licensee have executed this DPA, and each acknowledges having received a duly executed copy.

Schedule 1 - Technical and Organizational Measures

Epsilon3 maintains administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Personal Data as described below (further details at https://trust.epsilon3.io/):

Data retention procedures established: Epsilon3 has formal retention and disposal procedures in place to guide the secure retention and disposal of company and customer data.

 Licensee data deleted upon leaving: Epsilon3 purges or removes customer data containing confidential information from the application environment, in accordance with best practices, when customers leave the service.

Data classification policy established: Epsilon3 has a data classification policy in place to help ensure that confidential data is properly secured and restricted to authorized personnel.

Asset disposal procedures utilized: Epsilon3 has electronic media containing confidential information purged or destroyed in accordance with best practices, and certificates of destruction are issued for each device destroyed.

Production inventory maintained: Epsilon3 maintains a formal inventory of production system assets.

Portable media encrypted: Epsilon3 encrypts portable and removable media devices when used.

Anti-malware technology utilized: Epsilon3 deploys anti-malware technology to environments commonly susceptible to malicious attacks and configures this to be updated routinely, logged, and installed on all relevant systems.

Employee background checks performed: Epsilon3 performs background checks on new employees.

Code of Conduct acknowledged by contractors: Epsilon3 requires contractor agreements to include a code of conduct or reference to the company code of conduct.

Code of Conduct acknowledged by employees and enforced: Epsilon3 requires employees to acknowledge a code of conduct at the time of hire. Employees who violate the code of conduct are subject to disciplinary actions in accordance with a disciplinary policy.

Confidentiality Agreement acknowledged by contractors: Epsilon3 requires contractors to sign a confidentiality agreement at the time of engagement.

Confidentiality Agreement acknowledged by employees: Epsilon3 requires employees to sign a confidentiality agreement during onboarding.

Performance evaluations conducted: Epsilon3 managers are required to complete performance evaluations for direct reports at least annually.

Password policy enforced: Epsilon3 requires passwords for in-scope system components to be configured according to the company's policy.

MDM system utilized: Epsilon3 has a mobile device management (MDM) system in place to centrally manage mobile devices supporting the service.

Visitor procedures enforced: Epsilon3 requires visitors to sign-in, wear a visitor badge, and be escorted by an authorized employee when accessing the data center or secure areas.

Security awareness training implemented: Epsilon3 requires employees to complete security awareness training within thirty days of hire and at least annually thereafter.

Data encryption utilized: Epsilon3's datastores housing sensitive customer data are encrypted at rest.

Control self-assessments conducted: Epsilon3 performs control self-assessments at least annually to gain assurance that controls are in place and operating effectively. Corrective actions are taken based on relevant findings. If the company has committed to an SLA for a finding, the corrective action is completed within that SLA.

Penetration testing performed: Epsilon3's penetration testing is performed at least annually. A remediation plan is developed and changes are implemented to remediate vulnerabilities in accordance with SLAs.

Data transmission encrypted: Epsilon3 uses secure data transmission protocols to encrypt confidential and sensitive data when transmitted over public networks.

Vulnerability and system monitoring procedures established: Epsilon3's formal policies outline the requirements for the following functions related to IT / Engineering: vulnerability management; system monitoring.

Schedule 2 – Details of the Processing

The Parties may provide further details in the respective Principal Agreement if required for a particular service.

Nature, purpose and subject matter of the Processing

• Epsilon3 will Process Personal Data in accordance with the Principal Agreement and applicable Order Form(s), including to maintain and provide the Serviced.

• Epsilon3 will Process Personal Data to comply with other documented reasonable instructions provided by Licensee (e.g., via email) where such instructions are consistent with the terms of the Principal Agreement.

• Epsilon3 will Process Personal Data where required by Data Protection Laws

Duration of the Processing

·       Epsilon3 will generally Process Personal Data for the duration of the Principal Agreement and the DPA, unless otherwise agreed upon in writing

Categories of Data Subjects

Licensee may submit Personal Data to the Services, the extent of which is determined and controlled by Licensee, and such data may include Personal Data relating to the following categories of Data Subjects:

·       Data Subjects include Licensee’s employees, customers, clients, contractors, business partners or other individuals whose Personal Data is stored in the Services.

Types of Licensee Personal Data

Licensee may submit Personal Data to the Services, the extent of which is determined and controlled by Licensee. Such data may include the following categories of Personal Data:

•           First and last name,

•           Title,

•           Position,

•           Employer,

•           Contact information (company, email, phone, physical address),

•           Licensee transaction history;

•           Professional data (title, employer),

•           Personal life data (customer preferences),

•           Connection and usage data, and

•           Localization data.

Special categories of data (if appropriate)

The Personal Data transferred concern the following special categories of data: None.

Schedule 3 – Additional Terms for the Standard Contractual Clauses

1.              Transfers covered by the Standard Contractual Clauses. Epsilon3 makes available the Standard Contractual Clauses, attached hereto and incorporated herein by reference (“SCCs”), subject to the additional terms in this Schedule 3, as the transfer mechanism for any transfers of EU Data under the DPA from Europe to countries which do not ensure an adequate level of data protection within the meaning of EU Data Protection Laws, to the extent such transfers are subject to such EU Data Protection Laws. The SCCs will apply as long as no alternative recognized compliance standard for the lawful transfer of EU Data outside of Europe has been adopted, such as Binding Corporate Rules for Processors.

2.              Instructions. This DPA and the Principal Agreement are Licensee’s complete and final documented instructions to Epsilon3 for the Processing of European Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 8.1 of the SCCs, the following is deemed an instruction by the Licensee to Process European Data: (i) Processing in accordance with the Principal Agreement and the DPA, including to maintain and provide the Services; (ii) Processing to comply with other documented reasonable instructions provided by Licensee (e.g., via email) where such instructions are consistent with the terms of the Principal Agreement; and (iii) Processing where required by applicable law.

3.              Supervision. Clause 13 shall apply as follows: 

a.     Where  Licensee is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by  Licensee with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority. 

b.     Where  Licensee 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 shall act as competent supervisory authority. 

c.     Where  Licensee 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, Commission nationale de l'informatique et des libertés (CNIL) - 3 Place de Fontenoy, 75007 Paris, France shall act as competent supervisory authority.

d.     Where  Licensee is established in the United Kingdom or falls within the territorial scope of application of the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws and Regulations”), the Information Commissioner's Office (“ICO”) shall act as competent supervisory authority. 

e.     Where  Licensee is established in Switzerland or falls within the territorial scope of application of the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws and Regulations”), the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.

4.              New Sub-processors and List of current Sub-processors. Pursuant to Clause 9(a) of the SCCs, upon approval of Licensee, not to be unreasonably withheld, Licensee acknowledges and expressly agrees that Epsilon3 may engage new Sub-processors as described in the DPA. Epsilon3 shall make available to Licensee the current list of Sub-processors in accordance with the DPA.

5.              Copies of Sub-processor Agreements. The Parties agree that the copies of the Subprocessor agreements that must be provided by Epsilon3 to Licensee pursuant to Clause 9(c) of the SCCs may have all commercial information, or clauses unrelated to the SCCs or their equivalent, removed by Epsilon3 beforehand; and, that such copies will be provided by Epsilon3, in a manner to be determined in its discretion, only upon written request by Licensee.

6.              Audits and Certifications. The Parties agree that the audits described in Clause 8.9 of the SCCs shall be carried out in accordance with the DPA.

7.              Certification of Deletion. The Parties agree that the certification of deletion of Personal Data that is described in Clause 8.5 and 16(d) of the SCCs shall be provided by Epsilon3 to Licensee only upon Licensee’s written request.

8.              Liability. The liability of one Party to the other Party under Clause 12 of the SCCs shall be subject to the limitations of liability set out in the Principal Agreement, except to the extent that they impair the fundamental rights and freedoms of the data subject under EU Data Protection Laws.

9.              Notice. Any notice to be given under the SCCs will be made in accordance with the Principal Agreement and this DPA.

10.           Governing Law. The governing law for the purposes of clause 17 shall be the law that is designated in the Governing Law section of the Principal Agreement. If the Principal Agreement is not governed by an EU Member State law, the Standard Contractual Clauses will be governed by either (i) the laws of France; or (ii) where the Agreement is governed by the laws of the United Kingdom, the laws of England and Wales

11.           Conflict. In the event of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the SCCs) and the SCCs in Schedule 4, the SCCs shall prevail.

Schedule 4 – Standard Contractual Clauses

EUROPEAN  COMMISSION

STANDARD CONTRACTUAL CLAUSES

Controller 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) ([1]) for the transfer of 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 8.1(b), 8.9(a), (c), (d) and (e);

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

(iv)       Clause 12(a), (d) and (f);

(v)        Clause 13;

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

(vii)       Clause 16(e);

(viii)      Clause 18(a) and (b).

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 – Optional 

Docking clause

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

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

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

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1   Instructions

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

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

8.2   Purpose limitation

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

8.3   Transparency

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

8.4   Accuracy

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

8.5   Duration of processing and erasure or return of data

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

8.6   Security of processing

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

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

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

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

8.7   Sensitive data

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

8.8   Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union ([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:

(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 defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

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

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

8.9   Documentation and compliance

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

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

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

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

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

Clause 9

Use of sub-processors

(a)        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 thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b)        Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data 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.

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

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

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

Clause 10

Data subject rights

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

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

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

Clause 11

Redress

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

(b)        In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c)        Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i)         lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii)        refer the dispute to the competent courts within the meaning of Clause 18.

(d)        The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e)        The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f)         The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a)        Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b)        The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c)        Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d)        The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e)        Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f)         The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g)        The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a)           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.

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

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

Clause 14 

Local laws and practices affecting compliance with the Clauses

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

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

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

(ii)        the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ([4]);

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

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

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

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

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

Clause 15 

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

15.1      Notification

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

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

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

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

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

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

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

15.2      Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16 

Non-compliance with the Clauses and termination

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

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

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

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

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

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

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

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

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

Clause 17

Governing law

These Clauses shall be governed by the law of 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 ______.

Clause 18

Choice of forum and jurisdiction

(a)        Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b)        The Parties agree that those shall be the courts of ____.

(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

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A.   LIST OF PARTIES

Data exporter(s): 

Name: Licensee, as set forth in the signature block of the DPA

Address: Licensee’s address as designated by Licensee in the signature block of the DPA

Contact person’s name, position, and contact details:

Name:

Title:

Email Address:

Activities relevant to the data transferred under these Clauses: Not applicable

Signature and date: By entering into the attached DPA, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the DPA.

Role (controller/processor): Licensee

Data importer(s): 

Name: Epsilon3, Inc. (and its affiliates as applicable)

Address: 2708 Wilshire Bl. #350, Santa Monica, CA 90403

Contact person’s name, position and contact details: Max Mednik, COO, max@epsilon3.io

Activities relevant to the data transferred under these Clauses: Not applicable

Signature and date: By entering into the attached DPA, Data Importer(s) is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the DPA.

Role (processor): Epsilon3

B.   DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Data exporter may submit Personal Data to the Services provided by data importer as set forth in the Principal Agreement, the extent of which is determined and controlled by data exporter. Such data may include Personal Data relating to data exporter’s employees, customers, clients, contractors, business partners or other individuals whose Personal Data is stored in the Services.

Categories of personal data transferred

Data exporter may submit Personal Data to the Services provided by data importer, the extent of which is determined and controlled by data exporter. Such data may include the following categories of Personal Data:

•           First and last name,

•           Title,

•           Position,

•           Employer,

•           Contact information (company, email, phone, physical address),

•           Licensee transaction history;

•           Professional data (title, employer),

•           Personal life data (customer preferences),

•           Connection and usage data, and

•           Localization data.

Any application-specific data Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Data exporter shall not submit sensitive data to the Services without approval of data importer.

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

Continuous basis.

Nature of the processing

The personal data transferred will be subject to the following basic processing activities:

Processing of personal data in accordance with a contract between the parties regarding software services provided by data importer to data exporter.

Purpose(s) of the data transfer and further processing

The data importer is processing data for the purpose of providing a customer service platform as set forth in the agreement between data exporter and data importer.

Data importer will process personal data in accordance with the agreement between the parties (“Agreement”), including to maintain and provide the Services. Data importer will process personal data to comply with other documented reasonable instructions provided by data importer (e.g., via email) where such instructions are consistent with the terms of the Agreement.  Data importer will process personal data where required by applicable law.

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

Data importer will generally process personal data for the duration of the Agreement, unless otherwise agreed upon in writing

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

Data importer and its sub-processors will generally process personal data for the duration of the Agreement, unless otherwise agreed upon in writing.

C.   COMPETENT SUPERVISORY AUTHORITY

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

Where Licensee is the data exporter, the supervisory authority shall be the competent supervisory authorityas set forth in Schedule 3 to the DPA.

ANNEX II

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

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Data importer will maintain the technical and organizational measures set forth in Schedule 1 of the DPA (Technical and Organizational Measures).

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

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

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

[4] As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.