Data Processing Addendum

This Data Processing Addendum (“DPA”) addresses the processing of customer personal information in compliance with the CCPA and/or Personal Data in accordance with the requirements of EU Data Protection Laws.

Insofar as Criteria Corp and Criteria Australia Pty. Ltd. and its customers have both agreed to abide by applicable privacy laws, for the Standard Contractual Clauses to be valid, it must be signed by both the customer (the Data Controller) and Criteria Corp (the Data Processor). As specified in Criteria Corp terms and condition of use, all customers are bound by the terms of this DPA, however if a customer does not complete and sign this DPA, the SCC will not be valid and it will be assumed that customer is not using Criteria services with residents of the EU and that it does not intend to do so in the future.

Click this link to electronically complete and sign the DPA -->

https://na2.docusign.net/Member/PowerFormSigning.aspx?PowerFormId=c357365f-905b-4189-b82c-33c1bc4a2a41&env=na2&acct=a777aa0b-8c1a-4f46-bb0f-425352414900&v=2

Criteria Data Processing Addendum

(Including Criteria Corp and Criteria Australia Pty, Ltd.)

Revised: 31 January 2022

SECTION A. GENERAL TERMS

1.1 This Data Processing Addendum ("DPA") is supplemental to the Agreement (comprising the Order and Criteria Terms of Use or other written or electronic agreement) (“Agreement”) separately entered into between CRITERIA CORP and its affiliated entity Criteria Australia Pty. Ltd. (“Criteria,” “us” or “we”) and Customer (each, a “Party,” and collectively, the “Parties”) for the provision of the Service and establishes additional responsibilities of the Parties for the Processing of Customer Personal Information in compliance with the CCPA and/or Personal Data in accordance with the requirements of EU Data Protection Laws. If the entity signing this DPA is not a party to any Agreement, then this DPA is not valid and is not legally binding.

1.2 This DPA supplements the current Agreement with Customer and will terminate automatically upon termination of the Agreement, unless earlier otherwise terminated pursuant to its terms.

1.3 The Customer will act as a single point of contact for its Affiliates with respect to compliance of applicable privacy laws in accordance with this DPA. If CRITERIA provides information or notice to the Customer under this DPA, such information or notice will be deemed received by the Customer’s Affiliates. The Parties acknowledge and agree that any claims in connection with this DPA will be brought by the Customer, whether acting for itself or on behalf of an Affiliate.

1.4 This DPA will be effective only if it is executed and submitted to CRITERIA as described on this page and all items identified as “Required” in the table are completed accurately and in full. If Customer makes any deletions or other revisions to this DPA not otherwise agreed in writing by CRITERIA, then the revisions will be null and void.

1.5 This DPA consists of:

The main body of this DPA.
Schedule 1: Details of Personal Data
Attachment 1: Standard Contractual Clauses
Annex I to the Standard Contractual Clauses, which describes CRITERIA’s data processing activities.
Annex II to the Standard Contractual Clauses, which describes CRITERIA’s security technical and organizational measures for Personal Data.
Annex III, Schedule 2: Subprocessors

By executing the DPA, Client is agreeing to all parts of this DPA.

1.6 In the event of any conflict between an Order, the DPA and/or the Agreement, the following order of precedence will apply (in descending order): (1) the DPA, (2) the Agreement, and (3) the Order. No other terms or contract relating to Customer personal information will be valid or enforceable.

1.7 Any provision of this DPA that is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions. The parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute and then incorporate such substitute provision into this DPA.

1.8 All capitalized terms are defined below.

SECTION B. CCPA PERSONAL INFORMATION PROCESSING (CALIFORNIA)

1. GENERAL

To the extent CRITERIA is required to Process CCPA Personal Information on behalf of Customer, the following terms in this Section B shall apply.

1.1 Role of the Parties

For the purposes of the CCPA, the Parties acknowledge and agree that CRITERIA will act as a “Service Provider” as such term is defined in the CCPA, in its performance of its obligations pursuant to this DPA or the Agreement. CRITERIA shall be referred to as “Service Provider” throughout this Section B. The Customer will act as a single point of contact for its Affiliates with respect to CCPA compliance, such that if Service Provider gives notice to the Customer, such information or notice will be deemed received by the Customer’s Affiliates. The Parties acknowledge and agree that any claims in connection with the CCPA under this DPA will be brought by Customer, whether acting for itself or on behalf of an Affiliate.

1.2 Definitions

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the entity;

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of this DPA.

“CCPA Consumer” means a “consumer” as such term is defined in the CCPA.

“CCPA Personal Information” means the “personal information” (as defined in the CCPA) that the Service Provider Processes on behalf of the Customer and/or Customer’s Affiliates in connection with the Service Provider’s provision of the Service;

“Data Processing Services” means the Processing of CCPA Personal Information for any purpose permitted by the CCPA, such as for a permitted “business purpose,” as such term is defined in the CCPA, or for any other purpose expressly permitted by the CCPA;

“Processing” has the meaning given in the CCPA, and “Process” will be interpreted accordingly;

“Sell” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, CCPA Personal Information by the Supplier to another business or a third party for monetary or other valuable consideration

“Services” means the assessment services and any other services provided by Service Provider to the Customer under the Agreement, including the Data Processing Services;

“Subprocessor” means any subcontractor engaged by Service Provider who Processes CCPA Personal Information on behalf of Service Provider.

2. CCPA PERSONAL INFORMATION PROCESSING

2.1 Instructions for CCPA Personal Information

Customer and Service Provider agree and acknowledge that Service Provider is authorized to use, retain and disclose CCPA Personal Information for the delivery of Services to Customer in accordance with the Agreement, including: (i) disclosures to Subprocessors; (ii) for Criteria’s business purposes and (iii) as authorized by the CCPA. Processing CCPA Personal Information outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and the Service Provider on additional instructions for Processing.

2.2 Required Consents and Notices

The Customer is responsible for complying with the CCPA in connection with the collection, use and storage of CCPA Personal Information and will ensure that it obtains all necessary consents, and provides all necessary notices, for the lawful Processing of CCPA Personal Information by the Service Provider in accordance with the Agreement.

3. TRANSFER OF CCPA PERSONAL INFORMATION

3.1 No Disclosure of CCPA Personal Information

Except for permitted disclosures to Subprocessors pursuant to similar terms as this DPA, the Service Provider shall not disclose, release, transfer, make available or otherwise communicate any CCPA Personal Information to another business or third party without the prior written consent of the Customer. Notwithstanding the foregoing, nothing in this Agreement shall restrict the Service Provider’s ability to disclose CCPA Personal Information to comply with applicable laws or as otherwise permitted by the CCPA.

3.2 No Sale of CCPA Personal Information

The Service Provider shall not Sell any CCPA Personal Information to another business or third party without the prior written consent of the Customer.

4. CONSUMER RIGHTS REQUESTS

4.1 CCPA Consumer Rights Requests

On and after the effective date of the CCPA, Service Provider shall comply with all applicable requirements of the CCPA. Subject to a detailed written request by Customer and where possible, Service Provider shall assist Customer with responding to CCPA Consumer Rights Requests as required by applicable CCPA requirements.

4.2 Notice of Requests

The Service Provider shall promptly notify the Customer of any verified request received by the Service Provider from a CCPA Consumer or authorized representative enforcing available rights in respect of the CCPA Personal Information of the CCPA Consumer. Service Provider shall direct such CCPA Consumer or authorized representative to contact the Customer.

SECTION C. PERSONAL DATA PROCESSING (EUROPEAN ECONOMIC AREA)

1. GENERAL

To the extent CRITERIA is required to Process Personal Data on behalf of Customer, the following terms in this Section C shall apply.

1.1 Role of the Parties

For the purposes of the EU Data Protection Laws, the Parties acknowledge that the parties have the following roles:

Criteria as Controller of Customer Personal Data. Where Criteria captures contact details and payment details for its internal business purposes of sales and marketing, account management, technical support, and billing, and product improvement, Criteria is the Data Controller of such Customer Personal Data. In such cases, Module 1 of the Standard Contractual Clauses will apply.

Criteria as Processor of Customer Personal Data. Where Criteria processes Customer Data as a Data Processor on behalf of Customer as the Data Controller, Module 2 of the Standard Contractual Clauses shall apply.

CRITERIA acts as a “Data Importer” and the Customer and/or Customer’s Affiliates act as “Data Exporters.”

2 DEFINITIONS

2.1 Unless otherwise set out below, each capitalized term in this Section C shall have the meaning set out in the Agreement and the following capitalized terms used in this DPA shall be defined as follows:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the entity.
"Personal Data" means the “personal data” (as defined in the GDPR) described in Schedule 1 and any other personal data that Processor Processes on behalf of Customer or Customer's Affiliate in connection with Processor's provision of the Services;
"EU Data Protection Laws" means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Personal Data as amended, extended or reenacted from time to time and all orders, regulations, statutes, instruments or other subordinate legislation made thereunder in the European Union (“EU”), the European Economic Area and their member states, Switzerland, and the United Kingdom (“UK”) from time to time;
"European Economic Area" or "EEA" means the member states of the European Union together with Iceland, Norway, and Liechtenstein;
“Security Documentation” means the information provided to Customer by CRITERIA regarding its data security technical and organizational measures attached to the Standard Contractual Clauses as APPENDIX 2 and as may be updated by CRITERIA from time to time.
"Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data that could reasonably require notification under EU Data Protection Laws;
“Standard Contractual Clauses” means the annex found in EU Commission Implementing (EU) 2021/914 of June 2021 on standard contractual clauses for the transfer of Personal Data to third countries under Regulation (EU) 2016/679 of the European Parliament and of the European Council completed as described in Section 8 below (“Additional Terms for Transfer of Personal Data from the EEA and the United Kingdom”). A copy of the Standard Contractual Clauses is attached to this DPA as Attachment 1.
"Subprocessor" means any person or legal entity engaged by Processor who agrees to receive from Processor any Customer Personal Data;
“User” means Customer staff, Customer job applicants and other Customer representatives that use the Service; and
the terms "personal data", "Controller", "Processor", "Data Subject", "Process" and "Supervisory Authority" shall have the same meaning as set out in the GDPR.

1. DATA PROCESSING

For the purposes of EU Data Protection Laws, where Criteria acts as a Processor, CRITERIA shall be referred to as “Processor” throughout this Section C. Customer acknowledges that it has exclusive control and responsibility for determining the means and purposes and what Personal Data Customer submits to the Service and warrants it has all authority, grounds, rights and consents and permissions for submission and transfer of Personal Data and Processing by CRITERIA under the Agreement and this DPA. The subject-matter and duration of the processing, the nature and purpose of the processing, the type of Personal Data and categories of data subjects shall be as set out in Schedule 1 (which may be updated by the parties in writing from time to time) and the Customer confirms it is accurate.

3.1 Instructions for Data Processing. Processor will only Process Customer Personal Data in accordance with (a) the Agreement, to the extent necessary to provide the Service to the Customer, and (b) the Customer's written instructions, unless Processing is required by European Union or member state law to which Processor is subject, in which case Processor shall, to the extent permitted by applicable law, inform the Customer of that legal requirement before Processing that Personal Data. Customer hereby acknowledges and agrees that by virtue of using the Services it gives CRITERIA instructions to process and use Personal Data in order to provide the Services in accordance with the Agreement and as described in Appendix 1 to the Standard Contractual Clauses and for the following purposes: (i) Processing in accordance with the Agreement and applicable Orders, (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by User (e.g. via email or support tickets) where such instructions are consistent with the terms of the Agreement. Customer takes full responsibility to keep the amount of Personal Data provided to CRITERIA to the minimum necessary for the performance of the Services.

3.2 Other Processing Activities. Processing outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and Processor on additional instructions for Processing.

3.3 Customer’s Processing of Personal Data. Customer will, in its use of the Services, comply with EU Data Protection Laws. For the avoidance of doubt, Customer’s instructions to CRITERIA for the Processing of Personal Data must comply with EU Data Protection Laws. Customer has sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.

3.4 Required consents. Where required by applicable EU Data Protection Laws, Customer will be responsible for ensuring that all Data Subjects have given/will give all necessary consents for the lawful Processing of Personal Data by the Processor in accordance with the Agreement.

3.5 Privacy notices. Customer warrants and represents that:

a. it has provided all applicable notices to Data Subjects required for the lawful Processing of Personal Data by the Processor in accordance with the Agreement; or

b. in respect of any Personal Data collected by the Processor on behalf of the Customer, it has reviewed and confirmed the notices provided by the Processor to Data Subjects as accurate and sufficient for the lawful Processing of Personal Data by the Processor in accordance with the Agreement.

3.6 Indemnity. Customer agrees to indemnify the Processor and its officers, directors, employees, agents, affiliates, successors and permitted assigns (each an "Indemnified Party", and collectively the "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees and court fees, that are incurred by the Indemnified Parties (collectively, "Losses") arising out of any third party claim brought against the Processor relating to or arising out any instructions given by the Customer to the Processor under paragraph 3.1, any failure to obtain the consents under paragraph 3.4, any breach by the Customer of the warranty in paragraph 3.5 or any other breach by the Customer of any EU Data Protection Laws.

4 SUB-PROCESSORS

4.1 Authorized Subprocessors. The Customer agrees that Processor may use the parties listed on Schedule 2 (as updated from time to time in accordance with this Agreement) as Subprocessors to Process Personal Data.

4.2 The Customer agrees that the Processor and Processor’s Affiliates may respectively engage any third parties to fulfill the contractual obligations under the Agreement, including the processing of Personal Data. The Processor shall notify the Customer from time to time of the identity of the Subprocessors it engages, and the respective services the Subprocessors provide. Processor may make the Subprocessor information and updates available via its website.

4.3 If the Customer (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, Customer will notify CRITERIA in writing within 10 business days after receipt of CRITERIA’s notice. CRITERIA will use reasonable efforts to (i) move the Personal Data to another Subprocessor, (ii) recommend a commercially reasonable change to Customer’s use of the affected Services to avoid processing of Personal Data by said new Subprocessor, or (iii) work with the Subprocessor to ensure that any subprocessing is performed in a manner reasonably satisfactory to Customer. CRITERIA will use all reasonable efforts to address Customer’s concerns within a reasonable timeframe following receipt of Customer’s request.

4.4 Save as set out in clauses 4.1 and 4.2, the Processor shall not permit, allow or otherwise facilitate Subprocessors to Process Personal Data without the prior written consent of Customer and unless Processor enters into a written agreement with the Subprocessor which imposes obligations no less protective than the obligations of this DPA.

4.5 Liability of Subprocessors. The Processor shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Customer for the acts and omissions of any Subprocessor approved by the Customer as if they were the acts and omissions of Processor.

5 DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS

5.1 Controls for the Protection of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including the measures set out in the Security Documentation.

5.2 Audits. Upon request by the Customer, and subject to the confidentiality obligations set forth in the Agreement and this DPA, Processor shall make available to Customer (or Customer's independent, third-party auditor) all information reasonably necessary to demonstrate compliance with Article 28 of the EU Data Protection Laws and/or this DPA specific to Personal Data. Customer may request an on-site audit of Processor’s policies, procedures, and controls relevant to the protection of Personal Data, but only to the extent required under applicable EU Data Protection Law and up to one time every 12 months. Customer must provide at least 6 weeks’ prior notice to Processor of a request for such an audit. Customer shall reimburse Processor for any time expended for any such on-site audit at Processor’s then-current rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Processor shall mutually agree upon the scope, timing, and duration of the audit, in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly notify Processor regarding any non-compliance discovered during the course of an audit, and Processor shall use commercially reasonable efforts to address any confirmed material non-compliance. In the event that Customer requests an audit within thirty (30) days following a confirmed Security Incident, Processor will waive the applicable audit fees.

5.3 Security Incident Notification. Processor maintains policies and procedures intended to manage Security Incidents, including detailed escalation procedures as further described in the Security Documentation. If Processor or any Subprocessor becomes aware of a Security Incident, Processor will to the extent required and as permitted by law: (a) notify the Customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.

5.4 Processor Employees and Personnel. Processor shall treat the Personal Data as the Confidential Information of the Customer, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of Personal Data.

6 ACCESS REQUESTS AND DATA SUBJECT RIGHTS

6.1 Data Subject Requests. Save as required (or where prohibited) under applicable law, Processor shall notify Customer of any request received by Processor or any Subprocessor from a Data Subject in respect of their personal data included in the Personal Data, and shall not respond to the Data Subject.

6.2 Processor shall provide Customer with the ability to correct, delete, block, access or copy the Personal Data in accordance with the functionality of the Service.

6.3 Government Disclosure. Processor shall notify Customer of any request for the disclosure of Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.

7 ASSISTANCE

7.1 Where applicable, taking into account the nature of the Processing, and to the extent required under applicable EU Data Protection Laws, the Processor shall provide the Customer with any information or assistance reasonably requested by the Customer for the purpose of complying with any of the Customer's obligations under applicable EU Data Protection Laws, including:

a. reasonable endeavours to assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR; and

b. providing reasonable assistance to the Customer with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Customer, in each case solely in relation to Processing of Personal Data and taking into account the information available to Processor.

7.2 The Customer shall (at its own cost) provide assistance requested by CRITERIA in relation to the fulfilment of the CRITERIA obligation to cooperate with the relevant supervisory authority under EU Data Protection Laws. Notwithstanding any other provision of this DPA or the Agreement, CRITERIA shall be entitled to respond to and provide all relevant information in respect of requests or orders issued by such supervisory authority.

8. TERMS FOR TRANSFER OF PERSONAL DATA FROM THE EEA AND THE UK

8.1 All Processing of Personal Data in countries which do not ensure an adequate level of data protection per the European Commission’s decision of 4 June 2021 is on the basis of and subject to the Standard Contractual Clauses. For the purpose of the Standard Contractual Clauses, this DPA and the Agreement are the complete and final instructions of Customer (Data Exporter) to CRITERIA (Data Importer) for the Processing of Personal Data the Data Exporter hereby instructs the Data Importer to process Personal Data: (a) in accordance with the Agreement; (b) at the request of Data Exporter, including via the Services; and (c) as initiated by Data Subjects accessing the Services for or at the instruction of Data Exporter.

8.2 The Standard Contractual Clauses are hereby deemed completed as follows: (i) the Data Exporter is the Customer, and the Data Exporter’s contact information is set forth in the signature block below; (ii) the Data Importer is CRITERIA CORP, and CRITERIA’s contact information is set forth in the signature block below; (iii) Appendices 1 and 2 and 3 of the Standard Contractual Clauses are set forth below. By entering into this DPA, the parties are deemed to be signing the Standard Contractual Clauses.

8.3 In addition, Customer acknowledges that the Processor or its Subprocessors may access the Personal Data outside such other countries as may recognize and authorize such transfers in accordance with the EU-US Privacy Shield, provided that Processor maintains its certification to the EU-US Privacy Shield.

8.4 If applicable to Customer and to the extent required following the UK’s departure from the European Union, Customer will work with CRITERIA to execute the necessary agreements or arrangements to legitimize the transfer of Personal Data from the UK.

9 DURATION AND TERMINATION

9.1 Deletion of data. Subject to 9.2 and 9.3 below, Processor shall, following written request from Customer and within 90 (ninety) days:

make available to Customer a complete copy of all Personal Data by secure transfer in such a format as notified by Customer to Processor; and
delete and use all reasonable efforts to procure the deletion of all other copies of Personal Data Processed by Processor or any Subprocessors, according to instructions under section 9.2.

9.2 Subject to section 9.3 below, Customer may in its absolute discretion notify Processor in writing within 30 (thirty) days of the date of termination of the Agreement to require Processor to delete and procure the deletion of all copies of Personal Data Processed by Processor. Processor shall, within 90 (ninety) days of the date of termination of the Agreement:

comply with any such written request; and
use all reasonable endeavours to procure that its Subprocessors delete all Personal Data Processed by such Subprocessors, and, where this section 9.2 applies, Processor shall not be required to provide a copy of the Personal Data to Customer.

9.3 Processor and its Subprocessors may retain Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Provider shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

IN WITNESS WHEREOF, the parties have caused this Data Processing Addendum to be duly executed, incorporating the DPA Information Summary from the first page. Each party warrants and represents that its respective signatories whose signatures appear below are on the date of signature duly authorized.

CUSTOMER:		CRITERIA CORP
Authorized Signature		Authorized Signature
Name		David Sherman
Title		Chief Operating Officer

Schedule 1

DETAILS OF THE PROCESSING OF PERSONAL DATA

Subject Matter of Processing	Use and access of the web-based, platform pre- employment assessment services (“Service”) in accordance with the Agreement
Duration of Processing	The Term, as defined in the Criteria Agreement, subject to paragraphs 9.2 and 9.3 of the DPA
Nature and Purpose of Processing Types of Personal Data	Provision of the Service
Types of Personal Data	Personal Data of Staff that use the Service: First and last name Title Position Employer Physical business address Email usage information image likeness voice data video Personal Data of Applicants that use the Service: First and last name Email Location IP address operating system type and version unique device ID browser and browser language domain and other operating systems or platform image likeness voice data video any other Personal Data which Customer, its Affiliates or users enter into the Service, including information gathered during video interviews
Categories of Data Subjects	Users authorized or requested by Customer (data exporter) or an Affiliate to use the Service, consisting of: Employees, independent contractors, agents, or other contact persons of Customer (data exporter) and its Affiliates (“Customer Staff”); and Job applicants of Customer (data exporter) or an Affiliate (“Customer Applicants”)
Obligations and rights of the Customer	The obligations and rights of the Customer are as set out in this DPA.

Attachment 1

Standard Contractual Clauses

EUROPEAN COMMISSION

Brussels, 4.6.2021
C(2021) 3972 final ANNEX

ANNEX

to the

COMMISSION IMPLEMENTING DECISION

on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council

ANNEX

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1
Purpose and scope

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

These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2
Effect and invariability of the Clauses

These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3
Third-party beneficiaries

Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
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);
3. Clause 9 - Module Two: Clause 9(a), (c), (d) and (e);
4. Clause 12 - Module One: Clause 12(a) and (d); Modules Two: 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: Clause 18(a) and (b)
Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4
Interpretation

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

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

An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8
Data protection safeguards

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

MODULE ONE: Transfer controller to controller

8.1 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. It may only process the personal data for another purpose:

where it has obtained the data subject’s prior consent;
where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
where necessary in order to protect the vital interests of the data subject or of another natural person.

8.2 Transparency

In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:
1. of its identity and contact details;
2. of the categories of personal data processed;
3. of the right to obtain a copy of these Clauses;
4. where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.3 Accuracy and data minimisation

Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.

8.4 Storage limitation

The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation² of the data and all back-ups at the end of the retention period.

8.5 Security of processing

The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.
In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.

8.6 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 or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.

8.7 Onward transfers

The data importer shall not disclose the personal data to a third party located outside the European Union³ (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

it is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;
the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
it is necessary in order to protect the vital interests of the data subject or of another natural person; or
where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.

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

8.8 Processing under the authority of the data importer

The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.

8.9 Documentation and compliance

Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
The data importer shall make such documentation available to the competent supervisory authority on request.

MODULE TWO: Transfer controller to processor

8.1 Instructions

The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

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

The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

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 Union⁴ (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

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

8.9 Documentation and compliance

The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9. Use of Sub-processors

MODULE TWO: Transfer controller to processor

GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least 10 business 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.

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.⁸ The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10
Data subject rights

MODULE ONE: Transfer controller to controller

The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request.¹⁰ The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
In particular, upon request by the data subject the data importer shall, free of charge :
1. provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
2. rectify inaccurate or incomplete data concerning the data subject;
3. erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
1. inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
2. implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.

MODULE TWO: Transfer controller to processor

The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11
Redress

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.

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
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.
The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12
Liability

MODULE ONE: Transfer controller to controller

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.
Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.
Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.

MODULE TWO: Transfer controller to processor

Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13
Supervision

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

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

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

Clause 14
Local laws and practices affecting compliance with the Clauses

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
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 safeguards¹²;
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.
The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation

The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15
Obligations of the data importer in case of access by public authorities

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

15.1 Notification

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.

If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

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

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

SECTION IV – FINAL PROVISIONS

Clause 16
Non-compliance with the Clauses and termination

The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
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 [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

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

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

Clause 17
Governing law

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of _Ireland.

Clause 18
Choice of forum and jurisdiction

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
The Parties agree that those shall be the courts of _Ireland.
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.
The Parties agree to submit themselves to the jurisdiction of such courts.

DATA EXPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

DATA IMPORTER

Name: CRITERIA CORP

Authorised Signature..........................................................................................

APPENDIX

Annex I

A. LIST OF PARTIES

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Need details

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Criteria Corp

750 N. San Vicente Blvd.

Suite 1500

East Tower

West Hollywood, CA 90069

B. DESCRIPTION OF TRANSFER

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

Subject Matter and Details of the Data Processing

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Data exporter is the legal entity that has executed these Standard Contractual Clauses as a Data Exporter that has purchased the Service.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Data importer, CRITERIA CORP, is a web-based pre-employment assessment provider which Processes Personal Data for the purpose of providing the Service to the data exporter.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Data exporter may submit Personal Data to CRITERIA, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

Users of the Service as the data exporter authorizes, including:

➢ Staff of data exporter, including employees, independent contractors, and agents of data

exporter or its affiliates

➢ Job applicants of the data exporter

Categories of data

The personal data transferred concern the following categories of data (please specify):

Data:

Personal Data of staff:

➢ First and last name

➢ Title

➢ Position

➢ Employer

➢ Physical business address

➢ Email

➢ usage information

➢ image

➢ voice

➢ video

➢ likeness

➢ any other Personal Data the Customer, its Affiliates and/or staff submit in the course of their use of the Service

Personal Data of job applicants:

➢ First and last name

➢ Email

➢ Location

➢ IP address

➢ operating system type and version

➢ unique device ID

➢ browser and browser language

➢ domain and other operating systems or platform

➢ image

➢ voice

➢ video

➢ likeness

or such other categories Personal Data which Customer, its Affiliates or users enter into the Service, including information gathered during video interviews

CRITERIA CORP will make additional technical information available to Customer upon request, such as details available in its Privacy Policy: https://www.criteriacorp.com/privacy-policy

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

N/A

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

(i) Processing in accordance with the Agreement and applicable Order(s);

(ii) Processing initiated by Users in their use of the Services;

(iii) Processing to comply with other documented reasonable instructions provided by User (e.g., via email or support tickets) where such instructions are consistent with the terms of the Agreement. Categories of data subjects whose personal data is transferred

Purpose(s) of the data transfer and further processing

To provide the service as set forth in the agreement between the parties

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

For the period of time as set forth in the agreement between the parties

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

Please see Annex III

C. COMPETENT SUPERVISORY AUTHORITY

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

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

The Office of the Data Protection Commissioner in Ireland

21 Fitzwilliam Square South, Dublin 2 DO2 RD28, Ireland

DATA EXPORTER

[please include Company name here]

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

DATA IMPORTER

Name: CRITERIA CORP

Authorised Signature..........................................................................................

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

MODULE ONE: Transfer controller to controller

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

APPENDIX 2

TECHNICAL AND ORGANISATIONAL SECURITY MEASURES

1. Policies & Procedures. Processor maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:

a. secure any personal data Processed by Processor against accidental or unlawful loss, access or disclosure;

b. identify reasonably foreseeable and internal risks to security and unauthorized access to the personal data Processed by Processor; and

c. minimize security risks, including through risk assessment and regular testing.

Processor’s policies and procedures require, among other things, (i) establishing appropriate levels of security for personal data, (ii) employees and Subprocessors who process personal data on behalf of Processor to read and comply with Processor’s confidentiality terms and Processor’s Cyber Security Policies which are NIST CSF v.1.1 compliant, and

(iii) Subprocessors who may have access to personal data are required to execute data protection agreements that meets or exceeds Processor’s standard DPA.

2. Certifications.

SOC/ISO27001. Processor uses Amazon Web Services (“AWS”) as its hosting service provider. AWS provides third party attestations, certifications, Service Organization Controls (SOC) reports and other relevant compliance reports, including SOC and ISO27001, directly under NDA via the following websitehttps://aws.amazon.com/artifact/.

NIST Certification. Processor’s corporate office is NIST CSF v1.1 self-certified.

3. Monitoring & Management. Processor will, and will use reasonable efforts to procure that its Subprocessors, conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.

Security areas covered in Processor’s Cyber Security Policies include:

• Acceptable Use Policy

• Asset Management Policy

• Backup and Recovery Policy

• Change Management Policy

• Confidential Data Policy

• Data Classification Policy

• Data Retention and Disposal Policy

• Encryption Policy

• Incident Response Policy

• Malware Protection Policy

• Mobile Device Policy

• Network Access and Authentication Policy

• Network Security Policy

• Password Policy

• Patch Management Policy

• Personnel Security Policy

• Physical Security Policy

• Privacy Policy

• Remote Access Policy

• Risk Management Policy

• Secure Development Lifecycle Policy

• Secure Workspace Policy

4. Security

Processor will, and will use reasonable efforts to procure that its Subprocessors, periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

Processor contracts annually with two industry respected cyber security companies for both manual and automated vulnerability assessments and penetration testing of its applications. Processor’s penetration testing provider conducts regular penetration testing providing a comprehensive and fully detailed report with all findings (critical, high, medium, and low) as well as remediation procedures for Processor’s immediate action.

5. Data Encryption. Processor uses industry-standard encryption products to protect personal data and communications Processed by Processor during transmissions between a Controller and Processor, including management of public keys. All data in transit between Controller and Processor is encrypted using HTTPS/TLS. Data at rest is stored in a unique non-readable binary format and subject to AES 256- bit full disk encryption.

6. Backup and Restoration. All onsite data is held on redundant encrypted SAN using industry standard encryption technology. Data is also streamed in near real-time to an offsite backup and disaster recovery center via IPSec tunnel. Backed up data is stored using industry standard encryption technology. In the event that data needs to be restored, the onsite SAN backups would be used first.

7. Disaster Recovery. Disaster recovery plans are in place and tested at least once per year. Processor utilizes disaster recovery facilities that are geographically remote from their primary data centers, along with the required hardware, software, and Internet connectivity. In the event production capabilities at the primary data centers were rendered unavailable, the disaster recovery hosting facilities would be enabled and brought online. As personal data is already streamed and held at these same facilities, recovery time would be minimized.

8. Updates. Processor may change these Technical and Organizational Measures at any time without notice by keeping a comparable or better level of security. During the term of the Service, individual measures described in this Appendix 2 may be replaced with new measures that serve the same purpose without materially diminishing the overall security of the Processor’s Service.

DATA EXPORTER

Name: ....................................................................................................................

Authorized Signature ...........................................................................................

DATA IMPORTER

Name: CRITERIA CORP

Authorized Signature..........................................................................................

ANNEX III – LIST OF SUB-PROCESSORS

MODULE TWO: Transfer controller to processor

Schedule 2

(Effective as of January 14, 2022)

The following subprocessors are used by CRITERIA to process personal data on behalf of Customer (Data Controller)

The duration of the processing is as set forth in the individual agreement with the subprocessor:

SUBPROCESSOR	TYPE	DESCRIPTION
AdRoll	Cookie	Provides analytics of web activity
AHA	Internal product roadmap software	Contact details for customer or product support follow-up
Authorize.net	Credit card payment processing	Customer contact information (if Service is paid via credit card)
AWS (Amazon Web Services)	Hosting	Criteria Software as a Service
Calendly	Scheduling tool	Contact information for meeting scheduling
Chilipiper	Scheduling and routing	Contact details for customer or product support follow-up
ChurnZero	Customer success software	Customer usage analytics
CloudConvert	File Converter Service	Assessment with contact name
D&B Optimizer	Data Append Tool	Customer lead data
DocuSign	Electronic Contracting	Customer contact name, email, address for contract and accounting
Drift	Lead collection	Customer contact details for customer follow- up
Fivetran	Analytics	Data management tool
Gong.io	Sales analytics	Stores customer contact details for sales management
Google	Cookie	Provides analytics of web activity
JIRA	Customer support	Contact name and email for support ticket tracking
Joynd - (formerly HRNX)	HR integration software	Encrypts customer job candidate data

Lead Forensics	Lead generation software	Identify web site visitors
Mail Gun	Analytics	Email, Device ID, IP address
Marketo	CRM	Sends marketing emails to contacts
New Relic	Application performance monitoring	Customer and candidate data is masked but analyzed.
Nextiva	Sales analytics	Stores customer contact details for sales management
Office 365	Email	Emails to and from Criteria (excluding emails with assessment data)
Outreach	Customer success	Collects contact information for follow-up with potential customers
Pardot	CRM	Sends marketing emails to contacts
Qualtrics	Surveys	Customer survey data
QuickBooks Online	Accounting	Customer contact name, email, address for financial accounting
Rackspace	Hosting	Office 365 Host
Ruby Receptionist	Phone answering service	Processes contact details for calls to Criteria
Salesforce	Customer relationship management	Stores customer contact details for billing, contracting and marketing
Sophos	Antivirus	Antivirus software
Slack	Corporate messaging	Contact details for customer or product support follow-up
Zoom	Video and chat messaging, support, and streaming demos	Contact details for sales and support