Last Updated: [3/14/22]
This Data Processing Addendum (this “Addendum”) reflects the parties’ agreement with respect to the processing of personal data by MachineMetrics, Inc. (“MM”) in connection with the services provided under the Master Services Agreement between MM and the counterparty to that agreement (“Customer,” and such agreement, the “Agreement”). This Addendum is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, a SOW (defined in the Agreement), or an amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this Addendum will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency. MM reserves the right to update this Addendum from time to time, including without limitation in order to comply with revisions, amendments, or updates to Applicable Data Protection Law (defined below).
- Definitions: In this Addendum, the following terms shall have the following meanings:
- "controller", "processor", "data subject", "personal data", "processing" (and "process") and "special categories of personal data" shall have the meanings given in Applicable Data Protection Law;
- "Applicable Data Protection Law" means the data protection laws and regulations that are applicable to MM or Company and includes the General Data Protection Regulation (the “GDPR”) (Regulation (EU) 2016/679), and any implementing and supplementing law; (ii) the GDPR as transposed into the law of England and Wales, Scotland and Northern Ireland and the UK Data Protection Act 2018 United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, together with the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019; (iii) the Swiss Federal Act on Data Protection; (iv) the UK GDPR, and the California Consumer Privacy Act of 2018 and its implementing regulations (the “CCPA”) (Cal. Civ. Code §§ 1798.100-1798.199), any other applicable law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument implementing any of the foregoing (in each case as amended, consolidated, re-enacted or replaced from time to time).
- “SCCs” means:
“Security Incident” means an event about which MM knows, discovers, or is notified of, in which Customer personal data has been destroyed, lost, altered, accessed, disclosed, acquired or used by any unauthorized person, including, in each case, any “personal data breach” or “data breach” as defined by Applicable Data Protection Laws.
- For transfers between the Economic European Area and the United StateS: Module Two, transfers from an EU Controller to a processor abroad, of the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 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 and attached hereto as Exhibit A;
- For transfers between the United Kingdom and the United States: the standard contractual clauses available at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:039:0005:0018:EN:PDF;
each as may be amended or replaced from time to time by the European Commission, or by any other data protection authority with jurisdiction.
- Data Protection
- Relationship of the parties: Customer (the controller) appoints MM as a processor, and MM will process any personal data contained in the Customer Data (the "Data") solely for the purposes described in the Agreement or this Addendum (which constitute Customer's documented instructions) or as otherwise agreed on in writing by the parties (the "Permitted Purpose"). If any law applicable to MM prohibits any processing, MM shall inform Customer of such legal requirement prior to processing unless that law prohibits such information on important grounds of public interest. Without limiting the foregoing, MM shall not collect, sell, or use personal data except as necessary to perform the MM Services.
- Compliance with law: Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. As Customer is the controller of the Data, it is Customer's responsibility to obtain any consent required by Applicable Data Protection Law or to otherwise fulfil any requirement for a legal basis to process the Data. If MM becomes aware that processing for the Permitted Purpose infringes Applicable Data Protection Law, it shall promptly inform Customer (but MM shall be under no obligation to actively monitor Customer's compliance with Applicable Data Protection Law). A description of the processing taking place under the Agreement is set out in Annex I of Exhibit A.
- Prohibited data: Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to MM for processing.
- International transfers: Customer (for itself and its relevant Affiliates), as data exporters, and MM and its relevant Affiliates, each as a data importer, hereby execute the SCCs attached hereto, which are expressly incorporated herein and the Appendices to which are attached hereto as Annex I to Exhibit A. The SCCs shall apply to the Data and take effect as from the commencement of a transfer of Data to, by or between MM, its Affiliates or its subprocessors, to the extent such transfer would be prohibited by Applicable Data Protection Law in the absence of the SCCs. The SCCs will apply mutatis mutandis with respect to any transfer of Data that is subject to data protection laws of Switzerland or the United Kingdom, to the extent such transfer would be prohibited by Applicable Data Protection Law in the absence of the SCCs as apply mutatis mutandis. In the SCCs, the terms “Member State” and “State” are replaced throughout by the word “jurisdiction”; “supervisory authority” means the relevant data protection regulator or other government body with authority to enforce data protection laws; and references to “applicable data protection laws” and “Directive 95/46/EC” are replaced with “applicable data protection laws”. To the extent any SCCs are superseded by new or amended standard contractual clauses (“Amended SCCs”), the Amended SCCs will be expressly incorporated herein upon MM’s written notice to Customer given at least 7 (seven) days prior to MM’s proposed effective date of the Amended SCCs, and the Amended SCCs shall take effect and be binding upon the parties as of such effective date, unless Customer provides written notice of Customer’s objection to MM prior to such effective date.
- Confidentiality of processing: MM shall ensure that any person it authorises to process the Data (an "Authorised Person") is bound by an appropriate obligation of confidentiality (whether statutory or contractual) and that they process the Data only for the purpose of delivering the MM Services under the Agreement.
- Security: MM shall implement and maintain appropriate technical and organisational measures as set out in Annex II to Exhibit A to protect the Data from (i) accidental, unauthorized or unlawful destruction, and (ii) Security Incidents.
- Subcontracting: Customer consents to MM engaging third party subprocessors to process the Data for the Permitted Purpose provided that: (i) MM maintains an up-to-date list of its subprocessors at [https://support.machinemetrics.com/hc/en-us/articles/4408673990931] (“Subprocessor List”), which it shall update with details of any change in subprocessors prior to any such change; (ii) MM imposes data protection terms on any subprocessor it appoints that requires it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) MM remains liable for any breach of this Addendum that is caused by an act, error or omission of its subprocessor. MM shall provide Customer with a mechanism to subscribe to updates to the Subprocessor List. Customer may object in writing to MM's appointment or replacement of a subprocessor within 5 (five) days after publication of such update, provided such objection is based on Customer’s good faith documented determination that such appointment or replacement materially compromises MM’s compliance with Applicable Data Protection Law. In such event, MM will either not appoint or replace the subprocessor to process the Data or, if this is not possible, Customer may suspend or terminate the Agreement, pursuant to the terms of the Agreement.
- Cooperation and data subjects' rights: MM shall provide reasonable and timely assistance to Customer (at Customer's expense) to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) to the extent related to Data processed by MM; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to MM, MM shall promptly inform Customer providing full details of the same, unless prohibited by applicable law.
- Data Protection Impact Assessment: MM shall provide reasonable cooperation to Customer (at Customer's expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law to the extent related to the Data, in each case taking into account the nature of Data.
- Security incidents: If it becomes aware of a confirmed Security Incident, MM shall inform Customer without undue delay and shall provide reasonable information and cooperation to Customer so that Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. MM shall further take such reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep Customer informed of all material developments in connection with the Security Incident. The content and provision of any notification, public/regulatory communication or press release concerning the Security Incident (a “Communication”) shall be at Customer’s discretion, except as otherwise required by applicable laws. If and to the extent MM is referenced by name in any such Communication, MM shall be provided with an opportunity to review and approve the Communication for accuracy, such approval not to be unreasonably withheld.
- Return or Deletion of Data: At any time prior to termination or expiration of the Agreement, Customer shall have the option to submit a written request to retrieve Customer’s personal data from the MM Services. Within a reasonable time after termination of the Agreement, MM shall destroy all personal data in its possession or control. This requirement shall not apply to the extent that MM is required by applicable law to retain some or all of the personal data, or personal data it has archived on back-up systems, in which event MM shall securely isolate and protect from any further processing until deletion is possible, except to the extent required by such law.
- Audit: Customer acknowledges that MM is regularly audited by independent third party auditors. Upon request and no more than once per calendar year, MM shall supply a summary copy of its latest audit report(s) to Customer, which shall be subject to the confidentiality provisions of the Agreement. MM shall also respond to any written audit questions submitted to it by Customer, provided that Customer shall not exercise this right more than once per year. Customer shall bear its own costs to conduct such audit.
- Complete Agreement; Conflict. This Addendum is an addition to the Agreement and deemed to be part of it. Except as specifically set forth herein, the Agreement shall remain unchanged. In the event of any conflict between the Agreement and this Addendum, this Addendum will prevail.
- Governing Law. To the extent required by Applicable Privacy Laws or the SCCs, this Addendum shall be governed by and construed in accordance with the laws the country where Customer has its main establishment in the European Union, EEA, Switzerland or the United Kingdom. In all other cases, the DPA shall be governed by the laws of the jurisdiction specified in the Agreement.
Exhibit A to the Addendum
STANDARD CONTRACTUAL CLAUSES
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
- The Parties:
- the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8: Clause 8.1(b), 8.9(a), (c), (d) and (e);
- Clause 9: Clause 9(a), (c), (d) and (e);
- Clause 12: Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18: Clause 18(a) and (b).
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
- The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
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.
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 its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
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
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- 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 defense 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.
Use of sub-processors
- 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 30 (thirty) calendar 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. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
- lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
- refer the dispute to the competent courts within the meaning of Clause 18.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1f5, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
- The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
- The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
- Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
- The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
- Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
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
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
- Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
- Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of the Netherlands.
- 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.
ANNEX I to Exhibit A
Name: The Customer identified in the SOW
Address: The address set forth in the SOW
Contact person’s name, position and contact details: As set forth in the SOW.
Activities relevant to the data transferred under these Clauses: As described in part B below.
Role (controller/processor): Controller
[Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: MachineMetrics, Inc.
Address: 47 Pleasant St, Suite 2-S, Northampton, MA 01060
Contact person’s name, position and contact details: Jacob Lauzier, Data Protection Officer, MachineMetrics, Inc., 47 Pleasant St, Suite 2-S, Northampton, MA 01060
Activities relevant to the data transferred under these Clauses: As described in part B (Description of Transfer) below.
Role (controller/processor): Processor
Categories of data subjects whose personal data is transferred:
You may submit Personal Data in the course of using the Subscription Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Your Contacts and other end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to your end users.
Categories of personal data transferred:
Data exporter may submit personal data to MM for the Permitted Purpose, 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 the following categories of personal data:
You may submit Personal Data to the Subscription Services, the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following categories of Personal Data:
- Email Address
- Phone Number
Sensitive data transferred (if applicable).
Data exporter shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to data importer for processing.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
The processing relates to the following activities (please specify the activities being performed which require processing of personal data):
We will Process Personal Data as necessary to provide the Subscription Services pursuant to the Agreement, as further specified in the Master Services Agreement, and as further instructed by you in your use of the Subscription Services.
Purpose(s) of the data transfer and further processing
As described in the Nature of processing.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The personal data will be processed for the duration of the Agreement unless the data exporter earlier decides to erase such data.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
- COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The Dutch Data Protection Authorities
ANNEX II to Exhibit A
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
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.
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
MM Information Security Program Practices Assertion
MM is committed to protecting the confidentiality of the information provided by its clients and their employees. All personal data provided to MM through the MM Services is deemed confidential and is treated accordingly. MM maintains an enterprise-wide Information Security Program and has implemented administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of client confidential information. Due to the constantly changing nature of technologies and security concerns, we regularly conduct risk assessments and continually evaluate and modify our security procedures, policies and standards. MM maintains comprehensive written information security policies, which are summarized below, and which include an incident response and handling process.
Security Policies and Practices
The Information Security Program institutes technical, physical, and administrative safeguards to protect data and assets from unauthorized access, disclosure, or inappropriate use. The program establishes requirements and standards, and organizes them into Policy documents. Policies encompass, but are not limited to the areas listed below.
- Backup: MachineMetrics' backup procedures are documented in its Backup Policy. The purpose of this policy is to institute the necessary controls to mitigate the accidental loss of MachineMetrics data. These controls assume that events such as accidental data corruption, deletion, or destruction will occur, and mitigate the impact of such events by maintaining reliable backup copies from which data can be readily restored.
- Encryption: Encryption practices are documented in MachineMetrics' Encryption Policy. The purpose of this policy is to establish practices for protecting MachineMetrics data in the event of unauthorized access through the use of encryption. The policy describes the different components that can be configured to utilize encryption, the algorithm that must be used for each, and how encryption keys should be managed.
- Change Management: MachineMetrics' change management process is documented in its Change Management Policy. The purpose of this policy is to provide guidance on the process of managing change across MachineMetrics' critical systems and products in order to ensure that sufficient checks and balances are in place to mitigate the risks inherent in continuous product development.
- Vulnerability Management: MachineMetrics' Vulnerability Management program is documented in the Vulnerability Management Policy. The purpose of this policy is to establish vulnerability management controls and provide guidelines for their implementation. Vulnerability management encompasses source code, operating systems, runtimes, and devices, and vulnerability scans are performed externally via penetration testing and web application scans.
- Access Control: MachineMetrics' access control practices are documented in its Access Control Policy. The purpose of this policy is to establish the principles and guidelines for controlling access to systems owned by MachineMetrics.
- Authentication and Password: MachineMetrics' approach to authentication and password management is documented in MachineMetrics' Authentication and Password Policy. This policy describes MachineMetrics' requirements with regards to account authentication, including how passwords should be generated, used, and protected.
- Security Incident Response: MachineMetrics' procedures for handling security incidents are documented in its Security Incident Management Policy. The purpose of this policy is to establish requirements and plans for reporting and responding to security incidents impacting MachineMetrics' corporate or customer systems.
- Business Continuity: MachineMetrics' business continuity plan is documented in the Business Continuity Policy. The purpose of this policy is to establish requirements and plans to recover MachineMetrics operations following a disruption due to causes such as natural disaster, loss of access to premises, pandemic, or malicious activity from external or internal sources.
- Risk Management: MachineMetrics maintains a risk management program to identify, prioritize, and mitigate risk to acceptable levels.
- The program consists of regularly performed risk assessments, which identify and prioritize security and compliance gaps, and recommend additional security controls needed to mitigate the risk carried by the gaps.
- Training: Security awareness training is provided to new employees, and to all employees on a recurring annual basis, to promote strong security practices for the whole company.
Additional Safeguarding Measures
MM conducts periodic reviews of our security policies and practices through independent third-party auditing services, including ISO27001 certifications, as well as other assessments MM deem appropriate.