DATA PROCESSING AGREEMENT

This Data Processing Agreement (this “DPA”) is entered between SG Hosting Inc. (“TroyCoLIVE”, “we”) and Customer (“Customer”, “you”), together referred to as the “Parties”. This DPA is part of the Terms of Service, Privacy Policy and other relevant policies available here. Customers agreeing to these terms enter into this DPA on their own behalf to the extent required under applicable Data Protection Regulations and Laws and to the extent TroyCoLIVE processes Customer Data as instructed by the Controller (as defined in Section 1). 

In the course of providing the Services to the Customer TroyCoLIVE may process Customer Data on behalf of the Customer. The Parties agree to comply with the following provisions with respect to any Customer Data, each acting reasonably and in good faith: 

1. Definitions. 

Unless otherwise defined in this DPA, all capitalized terms have the meanings outlined below:

“Adequacy decision” means a formal decision made by the EU which recognises that another country, territory, sector or international organisation provides an equivalent level of protection for personal data as the EU does.

“Adequate country or countries” means countries covered by an adequacy decision issued by the EU, meaning data can flow freely between such countries. 

“Additional Products” means any features, products, software, programs, addons, plugins, scripts, tools or any other third-party software or content that are not part of the Services but that may be accessible via the TroyCoLIVE Client Area or the control panel.

“Agreement” means the Terms of Service and other relevant documents announced on our website, together with your Order for the purchase/use of Services and the Order confirmation sent by TroyCoLIVE, if applicable. 

“CCPA” means the California Consumer Privacy Act (California Civil Code §1798.100 et seq., 2018) including any amendments and any implementing regulations thereto.

“Controller” means the natural person or the legal entity which, alone or jointly with others, determines the purposes and means of the processing of customer data; In this agreement, it means the Customer (you).

“Customer Data” means any Personal Data that is provided to TroyCoLIVE by, or on behalf of the Customer through its use of the Services (for avoidance of doubt Personal Data part of the Customer’s Order for purchase/use of the respective Service shall not be treated as Customer Data, subject to this DPA). 

“Data Protection Losses” means all liabilities, including: 

1. claims, demands, actions, settlements, charges, procedures, expenses, losses and damages (whether material or non-material, and including for emotional distress);
2. to the extent permitted by Applicable Law:
3. administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Data Protection Supervisory Authority, other relevant Regulatory Authority or the respective competent court;
4. compensation to a Data Subject ordered by a Data Protection Supervisory Authority or the respective competent court;
5. the reasonable costs of compliance with investigations by a Data Protection Supervisory Authority or any other relevant Regulatory Authority; and
6. the costs of loading Customer Data and replacement of Customer materials and equipment, to the extent that the same are lost or damaged, and any loss or corruption of Customer Data including the cost of rectification or restoration of Customer Data;
7.  any other costs (including legal costs).

“Data Protection Regulations and Laws” or “Data Protection Regulations” means all regulations and laws, including but not limited to the CCPA, the laws and regulations of the European Union, the European Economic Area, their member states, Switzerland, the United Kingdom etc., applicable to the Processing of Customer Data under this DPA. 

Terms: “Data Subject”, “Personal Data”, “Processing”, “Processor” and “Supervisory Authority” (or “Data Protection Authority”) have the same meaning as described in the applicable Data Protection Regulations.

“Effective date” means, as applicable:

1. the date on which the Customer clicked to accept the Agreement or the Parties otherwise agreed to this DPA in respect of the applicable Agreement; or
2. 10 days from the date on which TroyCoLIVE makes this DPA publicly available and sends a notice to the Customer.

“GDPR” means the General Data Protection 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 customer data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Notification Email Address” means the email address specified by the Customer in the ‘Owner Profile Details’ Section in the Client Area to receive certain notifications from TroyCoLIVE.

“International Data Transfer Agreement” (“IDTA”) means the standard data protection clauses for the transfer of Customer Data when the data subject is in the UK, incorporated as Annex 4 to this DPA.

“Order” means any Customer’s order for purchase/use of the respective service(s). 

“Partner” means any person or entity which directly or indirectly controls, is controlled by, or is under common control with TroyCoLIVE. “Control” for the purpose of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Services” means any services we offer which could involve processing of Personal Data by TroyCoLIVE and its subcontractors.

“TroyCoLIVE” means the TroyCoLIVE entity which is a party to this DPA, namely: SG Hosting Inc., registered and existing under the laws of Delaware, USA, with registered address: 901 N. Pitt St, Suite 325, Alexandria 22314 VA, USA.

“TroyCoLIVE Group of Companies” means any and all companies, part of TroyCoLIVE Group of companies, engaged in the Processing of Customer Data:

• SG Hosting Inc., registered and existing under the laws of Delaware, USA, with registered address: 901 N. Pitt St, Suite 325, Alexandria 22314 VA, USA;
• TroyCoLIVE Spain S.L., registered and existing under the laws of the Kingdom of Spain (CIF number: B87194171), with registered address: Calle de Prim 19, 28004 Madrid, Spain;
• TroyCoLIVE Hosting Ltd., registered in England and Wales, with registered address: 3rd Floor, 11-12 St James’ Square, London, SW1Y 4LB, United Kingdom;
• TroyCoLIVE Hosting EOOD, registered in Bulgaria (UIC: 204181297), with registered address: 6 Olimpiyska St., fl. 7, Sofia, Bulgaria;
• TroyCoLIVE Capital Ltd, registered in Cyprus (Registration No. HE 414758), with registered address: 34 Griva Digeni, Office 4, 1066 Nicosia, Cyprus.

“Standard Contractual Clauses” or “SCCs” means the standard data protection clauses for the transfer of Customer Data, as described in Article 46, p.2, c) of the GDPR, incorporated as Annex 1 to this DPA.

“Sub-processor” means any Processor engaged by TroyCoLIVE or a member of the TroyCoLIVE Group of Companies.

“Term” means the period from the Effective Date until the end of TroyCoLIVE’s provisioning of the Services under the applicable Agreement, including, if applicable, any period during which  the Services may have been suspended and any post-termination period during which TroyCoLIVE may continue providing Services for transitional purposes.

2. Data Processing. 

2.1. Scope.

This DPA applies where and only to the extent that TroyCoLIVE processes Customer Data on behalf of the Customer in the course of providing the Services and such Customer Data is subject to the applicable Data Protection Regulations. 

Annex 1 (Standard Contractual Clauses) will be applicable to Data Subjects which are located in the EU, whilst Annex 4 (International Data Transfer Agreement) will be applicable to Data Subjects which are located in the UK.

If the Customer agreeing to this DPA is already a Customer, this DPA forms part of the Agreement, Privacy Policy and other relevant policies and documents announced on our website. This DPA including its annexes will be effective and replace any terms previously applicable to privacy, data processing and/or data security where TroyCoLIVE acts as a Data Processor.

2.2. Compliance with Laws.  

Еach party will comply with the obligations applicable to it under the applicable Data Protection Regulations with respect to the processing of that Customer Data.

2.3. Subject Matter and Details of the Data Processing.

2.3.1. Subject Matter.

TroyCoLIVE will process Customer Data as necessary for the provisioning of the Services and related technical and other support, incl. other inquiries pursuant to the Agreement and as further instructed by Customer in its use of the Services.

2.3.2. Duration of Processing.

Except as provided under Section 11, the duration of data processing shall be the Term designated under the Order and the applicable Agreement. 

2.3.3. Nature and Purpose of the Processing.

TroyCoLIVE will process Customer Data for the purposes of providing the Services and related technical and other support to the Customer in accordance with the Agreement, this DPA and other relevant documents.

2.3.4. Categories of Data Subjects.

We process Personal Data of the following categories of Data Subjects:

• Individuals which access and/or use the Services;
• Individuals whose data is provided to TroyCoLIVE via the Services by or at the direction of the Customer or by the Customer’s end users / website visitors;
• Employees, agents, freelancers, clients, and other contractors of the Customer, and any other individuals whose Personal Data is processed in connection with the provision of the Services;
• Individuals which transmit data via the Services, including individuals collaborating and communicating with the Customer or Customer’s end users / website visitors.

2.3.5. Categories of Personal Data.

We may process the following categories of Personal Data in the course of the provision of the Services:

• Personal identification information (such as name etc.);
• Contact details (such as address, email address, phone number etc.); 
• Any other type of Personal Data of Data Subjects transmitted in relation to the provision of the Services, including Personal Data processed in Customer’s logs or Customer’s content (such as IP address etc.).

2.4. Roles of the Parties.

The Parties acknowledge and agree that:

1. TroyCoLIVE is a Data Processor of the Customer Data under the applicable Data Protection Regulations;
2. Customer is a Data Controller or Data Processor, as applicable, of the Customer Data under the applicable Data Protection Regulations; and relies on a lawful basis according to the applicable Data Protection Regulations in order for TroyCoLIVE to process Customer Data and to provide the Services pursuant to the Agreement and this DPA.

2.5. Instructions for Data Processing. 

TroyCoLIVE shall process Customer Data in accordance with this DPA, which is the Customer’s complete and final instructions to TroyCoLIVE in relation to processing of Customer Data. Processing outside the scope of this DPA (if any) shall require prior written agreement between TroyCoLIVE and Customer on additional instructions for processing. By entering into this DPA, Customer instructs TroyCoLIVE to process Customer data only in accordance with applicable Data Protection Regulations:

1. in order to provide the Services and related technical and other support;
2. as initiated by the Customer and its end users / website visitors in their usage of the Services; 
3. as specified in the Agreement, Terms of Service, Privacy Policy and other relevant documents governing the provision of the Services and related technical and other support.

2.6. Access or Use. 

TroyCoLIVE shall not access or use Customer Data, except as necessary to provide the Services and related technical and other support to the Customer in accordance with the DPA, the Agreement and other relevant documents, and in order to comply with the applicable legislation, including with a valid and binding order (such as court order or other binding documents) of a law enforcement agency and/or any other competent authority/state body.

2.6.1. Customer’s Processing. 

The Customer shall, in its use of the Services, process its Personal Data in accordance with the requirements of Data Protection Laws and Regulations applicable to it. The Customer shall have sole responsibility for the accuracy, quality, and legality of its Data and the means by which the Customer acquired this Data.

2.6.2. TroyCoLIVE’s Processing of Customer Data. 

TroyCoLIVE shall only process Customer Data on behalf of and in accordance with the Customer’s documented instructions (this DPA) for the following purposes: 

1. Processing to provide the Services and related technical and other support;
2. Processing initiated by Customer and/or its end users / website visitors in their usage of the Services;
3. Processing necessary to maintain and improve the Services.

2.6.3. TroyCoLIVE’s Compliance with Instructions.  

As from the Effective Date TroyCoLIVE shall comply with the described instructions above including with regard to data transfers, unless the applicable legislation to which TroyCoLIVE is subject requires other processing of Customer Data by TroyCoLIVE, in which case TroyCoLIVE shall inform the Customer (unless that law prohibits TroyCoLIVE from doing so on important grounds of public interest). 

Customer Data may be accessed and processed by TroyCoLIVE and Sub-processors to fulfil the obligations under this DPA, the respective Agreement or applicable legislation. Such processing will comply with the measures outlined in Sections 3, Section 7 and Annex 2 Security Measures.

2.7. Rights of the Data Subjects.

2.7.1. Access, Rectification, Restricted Processing, Portability.

During the applicable Term, TroyCoLIVE shall, in a manner consistent with the functionality of the Services, enable Customer to access, rectify and restrict processing of Customer Data, including via deletion of all or some of the Customer Data under its account or deletion of the whole account as described in Section 2.8. (Return and Deletion of customer data), and via export of Customer Data.

2.7.2.  Data Subject Requests.

2.7.2.1.  Customer’s Responsibility for Requests. 

If during the applicable Term, TroyCoLIVE receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”), TroyCoLIVE shall advise the Data Subject to submit its request to the Customer, and the Customer shall be responsible for responding to any such request including, where necessary, by using the functionality of the Services. TroyCoLIVE shall, to the extent legally permitted, take commercially reasonable steps to notify the Customer about such requests.

2.7.2.2. TroyCoLIVE Data Subject Request Assistance.  

Taking into account the nature of the Processing, Customer agrees that TroyCoLIVE shall provide appropriate technical and organisational assistance, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests by Data Subjects, including if applicable Customer’s obligation to respond to requests for exercising the Data Subject’s rights laid down in the applicable Data Protection Regulations, by:

(a) providing documentation resources in the form of tutorials and knowledge base articles, functionality and/or controls in the control panel that Customer may elect to use to properly configure the Services and use the Services in a secure manner.

(b) providing features, functionalities and/or controls in the control panel that Customer may elect to use to retrieve, correct or delete the Customer Data from the Services.

(c) complying with the commitments set out in this DPA.

(d) To the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, TroyCoLIVE shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent TroyCoLIVE is legally obliged to do so and the response to such Data Subject Request is required under the applicable Data Protection Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from TroyCoLIVE’s provisioning of such assistance.

2.8. Return and Deletion of Customer Data.

TroyCoLIVE shall enable the Customer to delete Customer Data during the applicable Term in a manner consistent with the functionality of the used Services and  respective features.  Retrieval or deletion of Customer Data by the Customer shall constitute an instruction to TroyCoLIVE to delete the respective Customer Data archived on backup systems in accordance with applicable law and within а maximum period of 60 calendar days.  

Deactivation of the Services or expiry of the applicable Term shall constitute an instruction to TroyCoLIVE to delete the Customer Data and the relevant Customer Data archived on backup systems within а maximum period of 60 calendar days. 

Nothing in this Section 2.8 varies or modifies any obligation of TroyCoLIVE to retain some or all Customer Data as necessary to comply with the applicable legislation including with a valid and binding order (such as court order or other binding documents) of a law enforcement agency and/or any other competent authority/state body. 

2.9. Disclosure. 

TroyCoLIVE shall not disclose Customer Data to any government, law enforcement agencies and other authorities, except as necessary to comply with the applicable legislation or a valid and binding order (such as court order or other binding documents) of a law enforcement agency and/or any other competent authority/state body. Upon receipt of an order by the authorities of a third country, TroyCoLIVE will act in accordance with clause 15 of the Standard Contractual Clauses. TroyCoLIVE may also disclose Customer Data to third parties in the event that TroyCoLIVE sells or buys any business or assets, in which case TroyCoLIVE may disclose Customer Data to the prospective seller or buyer, or in case TroyCoLIVE sells, buys, merges, is acquired by, or partners with other companies or businesses, or sells some or all of its assets. 

2.10. TroyCoLIVE’s Personnel. 

TroyCoLIVE restricts its personnel from processing Customer Data without authorisation by TroyCoLIVE. Access to Customer Data is limited to those personnel whose role and responsibilities are connected to the provision of Services.

TroyCoLIVE imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security. TroyCoLIVE ensures that these confidentiality obligations survive the termination of the personnel engagement.

2.11. Data Protection Officer.

Members of TroyCoLIVE Group of Companies have appointed a Data Protection Officer in compliance with the applicable Data Protection Regulations, who can be reached at privacy@TroyCoLIVE.com. 

3. Sub-processors.

3.1. Consent to Sub-processor Engagement/Appointment of Sub-processors. 

The Customer acknowledges and agrees that: 

(a) TroyCoLIVE Partners may be retained as Sub-processors; and 

(b) TroyCoLIVE and TroyCoLIVE Partners respectively may engage Sub-processors in connection with the provisioning of the Services. TroyCoLIVE has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processors. 

If Customer has entered into Standard Contractual Clauses (Annex 1) or the International Data Transfer Agreement (Annex 4) as described in Section 5, the above authorizations shall constitute Customer’s prior written consent to the subcontracting by TroyCoLIVE of the processing of Customer Data if such consent is required under the Standard Contractual Clauses.

3.2. Information about Sub-processors.

3.2.1. TroyCoLIVE may share information about you with Sub-processors such as the TroyCoLIVE Group of Companies who may be engaged with provisioning of Services subject to your Agreement and who are based within and/or outside the EU, EEA or UK. These Sub-processors shall process the provided Customer Data under instructions of TroyCoLIVE and in compliance with our Privacy Policy and this DPA.

3.2.2. A list of TroyCoLIVE’s Sub-processors can be disclosed upon request, according to Annex 3.

3.3. Requirements for Sub-processor engagement.

When engaging any Sub-processor, TroyCoLIVE shall:

(a) ensure via a written contract that:

(i) the Sub-processor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with this Data Processing Agreement and any Standard Contractual Clauses or International Data Transfer Agreement entered into or Alternative Transfer Solution adopted by TroyCoLIVE as described in Section 5; and

(ii) the data protection obligations set out in the applicable Data Protection Regulations, as described in this Data Processing Agreement, are imposed on the Sub-processor; and

(b) remain fully liable for all obligations subcontracted to it, and all acts and omissions of the Sub-processor.

3.4. Objection Right for Sub-processor(s). 

3.4.1. Customer may object to any Sub-processor by terminating the applicable Agreement immediately upon written notice to TroyCoLIVE, on condition that Customer provides such notice within 10 calendar days of being informed of the engagement of the respective Sub-processor. This termination right is Customer’s sole and exclusive remedy if Customer objects to any Sub-processor.

3.4.2. TroyCoLIVE shall refund Customer any prepaid fees covering the remainder of the term of such Order(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on the Customer.

4. Data Protection Impact Assessments and Consultations. 

Upon Customer’s request, TroyCoLIVE shall provide the Customer with reasonable cooperation and assistance needed to fulfil the Customer’s obligation under the applicable Data Protection Regulations to carry out a data protection impact assessment (DPIA) related to the Customer’s use of Services, to the extent the Customer does not otherwise have access to the relevant information, and to the extent that such information is available to TroyCoLIVE. TroyCoLIVE shall provide reasonable assistance to the Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this DPA, to the extent required under the Data Protection Regulations.

5. Transfers Out of the EU, EEA and the UK.

5.1. Data Centers.

TroyCoLIVE processes Customer Data in Data Centers located inside and outside the European Union, EEA and the UK. Information about the  Data Centers locations is available on:https://www.TroyCoLIVE.com/datacenters and TroyCoLIVE reserves the right to update it from time to time.

The Customer may specify the Data center location where its hosting account content will be stored. The Customer agrees that TroyCoLIVE may change the locations of the Data Centers and move Customer’s hosting account to another Data Center at its sole discretion. TroyCoLIVE shall inform the Customer at least 10 calendar days before moving Customer’s hosting account at its sole discretion to a new Data Center either by sending an email to the Notification Email Address or via the Client Area. If the change of the Data Center results in storing the Customer Data located in the Customer’s hosting account under a different jurisdiction, the Customer may object to such change by terminating the Agreement immediately and upon written notice to TroyCoLIVE, on condition that the Customer provides such notice within 10 calendar days of being informed of the change of the Data Center.

The Customer can move its hosting account to another Data Center location at any time, provided that the functionality of the Services allows it and in exchange of additional fees.

5.2. Processing Locations.

To the extend the Customer Data is located in a Data Center outside the EU, European Economic Area or the UK, and to the extend TroyCoLIVE provides the Services and related technical and other support, the Customer agrees that TroyCoLIVE may, subject to Section 5, transmit, access and process Customer Data in the EU, EEA, UK, Asia, Australia, and the United States and any other countries where TroyCoLIVE and/or its Partners and Sub-processors have Data Centers, facilities or maintain data processing operations. 

This type of international data transfer operations may occur upon provision of any of the  Services provided by TroyCoLIVE, including Content Delivery Network (CDN) service.

The geographical locations of the servers to which the above-mentioned data transfer may happen are listed on our website and are subject to changes at our sole discretion. 

If the storage and/or processing of Customer Data involves processing of Customer Data outside of the EEA and the EU GDPR applies, then this DPA and Annex 1, containing the Standard Contractual Clauses, will automatically apply as a contractual safeguard of the international data transfer.

If the storage and/or processing of Customer Data involves processing of Customer Data outside of the UK, and the UK GDPR applies, then this DPA and Annex 4, containing the International Data Transfer Agreement, will automatically apply as a contractual safeguard of the international data transfer.  

5.3. Transfer Mechanism.

To the extent TroyCoLIVE processes or transfers (directly or via onward transfer) Customer Data under this DPA from the European Union, the European Economic Area, UK to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Regulations of the foregoing territories, the Parties agree that:

1. The Customer hereby authorises any transfer or access to Customer Data from and to such destinations outside the EU, European Economic Area and the UK;
2. TroyCoLIVE shall be deemed to provide appropriate and proportional technical and organisational data protection and cybersecurity risk mitigation measures, as well as to perform the appropriate risk assessments when transferring Customer Data outside of the EU, EEA and the UK;
3. TroyCoLIVE shall be deemed to provide appropriate safeguards to protect Customer Data by virtue of making available Standard Contractual Clauses (Annex 1) and International Data Transfer Agreement (Annex 4) as a transfer mechanism.

3.1. The Standard Contractual Clauses (Annex 1) will apply to Customer Data that is transferred, when the Data Subject is in the EU or EEA;

3.2. The International Data Transfer Agreement (Annex 4) will apply to Customer Data that is transferred, when the Data Subject is in the UK.

6. Processing records.

The Customer acknowledges that TroyCoLIVE is required under the applicable Data Protection Regulations to:

(a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which TroyCoLIVE is acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and 

(b) make such information available to the Supervisory Authorities. When the GDPR applies to the processing of Customer data, the Customer shall, where requested, provide such information to TroyCoLIVE via the TroyCoLIVE website or other means provided by TroyCoLIVE, and shall ensure that all provided information is kept accurate and up-to-date.

7.  Security Responsibilities of TroyCoLIVE.

7.1. Security measures.

TroyCoLIVE shall implement and maintain technical and organisational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Annex 2 (the “Security Measures”). As described in Annex 2, the Security Measures include measures to provide encrypted transmission of Customer Data outside the Service environment; to help ensure ongoing confidentiality, integrity, availability and resilience of TroyCoLIVE’s systems and Services; to help restore timely access to Customer Data from an available backup copy, provided either by TroyCoLIVE Backup Services or Customer’s own backup copy following an incident; and for regular testing of effectiveness. TroyCoLIVE may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

7.2. Customer’s Security Responsibilities and Assessment.

The Customer agrees that, without prejudice to TroyCoLIVE’s obligations under Section 7 (Security Responsibilities of TroyCoLIVE) and other relevant Sections in this DPA: 

7.2.1. The Customer is solely responsible for its use of the Services, including:

1. making appropriate use of the Services to ensure a level of security suitable to the risk in respect of the Customer Data and the content of its hosting account;
2. securing the account authentication credentials, systems, and devices the Customer uses to access the Services; 

iii. ensuring that all programs, scripts, addons, plugins and other software installed on its hosting account are secure, properly configured and regularly maintained, and their use does not impose any security risk in respect to the Customer Data and the account itself;

7.2.2. TroyCoLIVE has no obligation to protect Customer Data which the Customer stores or transfers outside of TroyCoLIVE’s and its Sub – processors’ systems (for example, offline or on-premise storage), or to provide additional paid security services except to the extent that TroyCoLIVE offers and respectively the Customer orders and pays such services.

7.2.3. The Customer is solely responsible for reviewing the documentation and evaluating whether the Services, the Security Measures, TroyCoLIVE’s commitments under this Section and the following meet the Customer’s needs, including any security obligations of the Customer under the applicable Data Protection Regulations.

7.2.4. The Customer acknowledges and agrees that (taking into account the costs of implementation and the nature, scope, context and purpose of processing of Customer data as well as the risks to individuals) the Security Measures implemented and maintained by TroyCoLIVE as set out in Section 7.1. provide the needed level of security appropriate to the risk in respect to the Customer Data.

7.2.5. It is the Customer’s responsibility to backup Customer Data and all data and content stored within its hosting account in order to prevent potential data loss. TroyCoLIVE Backup Services are provided “as-is” and are subject to all limitations of liability set out in the applicable Agreement. In the event of partial or full data loss or corruption and in case that the Customer is not satisfied with the outcome of the restore by the TroyCoLIVE Backup Services or TroyCoLIVE’s backup copy is not recent or suitable for restore, it shall be the Customer’s obligation to restore any and all data and content stored within its hosting account from Customer’s own backup.

8. Review and Audits of compliance.

Under the applicable Data Protection Regulations: 

1. The Customer has the right to verify TroyCoLIVE’s compliance with its obligations under this DPA, by conducting a review of documentation or an audit, conducted by the Customer or an independent auditor appointed by the Customer, by making a specific request to TroyCoLIVE in a written form to the address set in the respective Terms of Service. 
2. TroyCoLIVE shall further provide written responses to all reasonable requests by the Customer and may charge a fee for any review or audit. TroyCoLIVE will provide details of any applicable fee in advance of any such audit and the Customer will be responsible for any fees charged by any auditor and any fees associated with executing an audit. The reports of any such audit will be made available to TroyCoLIVE without restrictions of the purposes for its further usage by TroyCoLIVE.
3. TroyCoLIVE may object and decline in writing to the Customer or an auditor appointed by the Customer to conduct any audit if the Customer or the auditor is, in TroyCoLIVE’s reasonable opinion, not suitably qualified or independent, a competitor of TroyCoLIVE, or otherwise manifestly unsuitable.
4. If TroyCoLIVE declines to follow any instruction requested by the Customer or an auditor regarding a properly requested and scoped audit or review, the Customer is entitled to terminate this DPA and the Agreement.
5. Nothing in this Section 8 (Review and Audits of compliance) varies or modifies any rights or obligations of Customer or TroyCoLIVE under the Standard Contractual Clauses entered into as described in Section 5.

9.  Security Breach Notification. 

9.1. TroyCoLIVE maintains security incident management policies and procedures and shall notify the Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Customer data transmitted, stored or otherwise processed by TroyCoLIVE or its Sub-processors of which TroyCoLIVE becomes aware and which affects the rights and freedoms of any Data Subjects (“Customer Data Incident”). TroyCoLIVE shall make reasonable efforts to identify the cause of such Customer Data Incident and take the steps as TroyCoLIVE deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within TroyCoLIVE’s reasonable control. The obligations herein shall not apply to incidents that are caused by the Customer, Customer’s usage of the Services, Customer’s actions or activities or Customer’s Users.

9.2. Notifications made pursuant to this section shall describe, to the extent possible, details of the Customer Data Incident, including steps taken to mitigate the potential risks and steps TroyCoLIVE recommends the Customer to undertake in order to address the Customer Data Incident. 

9.3. Notification(s) of any Customer Data Incident(s) shall be delivered to the Notification Email Address or, at TroyCoLIVE’s discretion, by direct communication (for example, by phone call). The Customer is solely responsible for ensuring that the Notification Email Address and its contact information specified in ‘Owner Profile Details’ Section of its Client Area is correct and valid.

9.4. TroyCoLIVE shall not assess the content of the Customer Data in order to identify information subject to any specific legal requirements. Customer is solely responsible for complying with incident notification laws applicable to the Customer and for fulfilling any third party notification obligations related to any Customer Data Incident(s).

9.5. TroyCoLIVE’s notification of or response to a Customer Data Incident under this Section 9 shall not be construed as an acknowledgement by TroyCoLIVE of any fault or liability with respect to the Customer Data Incident.

10. Liability and indemnity.

10.1. The Customer shall indemnify and keep indemnified TroyCoLIVE with respect to all data protection breaches and losses suffered or incurred by, arising from or in connection with:

(a)  any non-compliance by the Customer with data protection laws and regulations;

(b)  any breach by the Customer of its data protection and other obligations under this DPA and the Agreement; 

10.2. TroyCoLIVE shall be liable for data protection breaches and losses caused by processing of Customer Data only to the extent directly resulting from TroyCoLIVE’s failure to comply with its obligations as Data Processor under Data Protections Laws and Regulations. TroyCoLIVE’s liability under the DPA will be subject to the exclusions and limitations of liability set out in the Agreement.

11. Termination.

This DPA will take effect from the Effective Date until the end of TroyCoLIVE’s provisioning of the Services under the applicable Agreement, including, if applicable, any period during which  the Services may have been suspended and any post-termination period (namely maximum 60 calendar days) during which TroyCoLIVE may continue processing Customer Data for transitional purposes (“Term”). Nothing in this Section 11 varies or modifies any obligation of TroyCoLIVE to retain some or all Customer Data as necessary to comply with the applicable legislation or with a valid and binding order (such as a subpoena or a court order) of a law enforcement agency and/or any other competent authority/state body. The DPA will automatically be terminated upon termination of the Agreement and deletion of all Customer Data by TroyCoLIVE.

12.  Legal Effect. Amendments.

12.1. To the extent of any conflict or inconsistency between the terms of this DPA and the ones of the applicable Agreement related to the Processing of Customer Data, the terms of this DPA shall prevail. For clarity, if the Customer has entered more than one Agreement, this DPA shall amend each of the Agreements separately.

12.2. TroyCoLIVE may modify the terms of this DPA at any time. If we make material changes to this DPA, we will notify you here, by email, or by means of a notice via our website or via your Client Area, at least ten (10) calendar days before the changes take effect. Non-material changes of this DPA shall have immediate effect. 

Annex 1:

STANDARD CONTRACTUAL CLAUSES 

SECTION I

Clause 1

Purpose and scope

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

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 – Optional

Docking clause

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

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

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

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

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

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

8.2 Purpose limitation

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

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex 2 and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6 Security of processing

(a)The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex 2. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

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

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

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

8.7 Sensitive data

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

8.8 Onward transfers

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

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

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

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

8.9 Documentation and compliance

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

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

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

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

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

Clause 9

Use of sub-processors

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

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

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

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

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

Clause 10

Data subject rights

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

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex 2 the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

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

Clause 11

Redress

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

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

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

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

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

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

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

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

Clause 12

Liability

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

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

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

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

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

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

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

Clause 13

Supervision

(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

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

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

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

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

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

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

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

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

Clause 15

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

15.1 Notification

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

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

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

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

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

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

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

15.2 Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

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

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

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

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

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

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

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

Clause 17

Governing law

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

Clause 18

Choice of forum and jurisdiction

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

(b) The Parties agree that those shall be the courts of thе Kingdom of Spain.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

Annex I.A.  LIST OF PARTIES

Data exporter(s):

Name: [Customer name]

Address: [Customer address]

Contact person’s name, position and contact details: [Contact person for Customer]

Activities relevant to the data transferred under these Clauses: The Data importer provides the Services to the Data exporter in accordance with the Agreement.

Signature and date: 

…………………………………………………………………………………………..

Role: Data Controller

Data importer(s):

Name: SG Hosting Inc. 

Address: 901 N. Pitt St, Suite 325, Alexandria 22314 VA, USA

Contact person’s name, position and contact details: TroyCoLIVE Privacy Team, privacy@TroyCoLIVE.com.

Activities relevant to the data transferred under these Clauses: hosting and other services

Signature and date: 

…………………………………………………………………………………………..

Role: Data Processor

Annex I.B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

The personal data concerns the categories of data subjects as defined in Section 2.3.4. in the Data Processing Agreement.

Categories of personal data transferred

The personal data concerns the categories of data as defined in Section 2.3.5. in the Data Processing Agreement.

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

Customer may submit Customer Data in the course of its use of the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include categories of sensitive data. To ensure its protection we have adopted various restrictions and safeguards such as security measures, systems and data access controls, and others. For more detailed information, see Annex 2.

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

On a continuous basis.

Nature of the processing

The nature of the processing is determined according to Art. 2.3.3 of the DPA.

Purpose(s) of the data transfer and further processing

The purpose of the data transfer and further processing is to better utilise TroyCoLIVE’s server infrastructure, some of which is based outside the EEA.

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

The duration of the processing is determined according to Art. 2.3.2 of the DPA. 

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

The subject matter, nature and duration of the processing is determined according to Art. 2.3.1, 2.3.2 and 2.3.3 of the DPA respectively.

Annex I.C. COMPETENT SUPERVISORY AUTHORITY

Competent supervisory authority is the Spanish Data Protection Agency.

Annex 2: TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA 

Security Measures

TroyCoLIVE implements and maintains appropriate technical and organisational Security Measures for the Processing of Personal Data, including the measures set out in this Annex 2 to the Data Processing Agreement. These measures are intended to protect Personal Data against accidental or unauthorized loss, destruction, alteration, disclosure or access, and against all other unlawful forms of Processing. Additional measures, and information concerning such measures, including the specific security measures and practices for the particular Services ordered by Customer, may be specified in the Agreement.  

TroyCoLIVE may update or modify these Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services. 

The technical and organisational security measures implemented by TroyCoLIVE are in accordance with the Standard Contractual Clauses. 

Personnel and Confidentiality

TroyCoLIVE shall take reasonable steps to ensure that no person shall be appointed by TroyCoLIVE to process Personal Data unless that person:

1. is competent and qualified to perform the specific tasks assigned to him by TroyCoLIVE;
2. has been authorised by TroyCoLIVE; and
3. has been instructed by TroyCoLIVE in the requirements relevant to the performance of the obligations of TroyCoLIVE under these Clauses, in particular the limited purpose of the data processing.

TroyCoLIVE personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. TroyCoLIVE conducts reasonably appropriate background checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations. Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, TroyCoLIVE’s confidentiality and privacy policies. They are provided with relevant information security and data protection trainings and personnel handling Customer Data are required to complete additional requirements appropriate to their role. 

Physical Security 

TroyCoLIVE uses geographically distributed data centers and stores all production data in physically secure data centers. TroyCoLIVE Sub-processor’s production data centres employ measures to secure the access to data processing systems. They have an access system that controls access to the data center. This system permits only authorised personnel to have access to secure areas. The facilities are designed to withstand adverse weather and other reasonably predictable natural conditions, are secured by around-the-clock guards, CCTV monitoring, access screening and escort-controlled access, and are also supported by on-site back-up generators in the event of a power failure.

The data center electrical power systems are designed to be redundant and maintainable without impact to continuous 24/7 operations. In most cases, a primary as well as an alternate power source is provided for critical infrastructure components in the data center. Backup power is provided by various mechanisms such as uninterruptible power supplies (UPS) batteries or diesel generators which are capable to provide emergency electrical power supply or reliable power protection during utility brownouts, blackouts, over voltage, under voltage, and out-of-tolerance frequency conditions.

Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks. TroyCoLIVE Sub-processor’s production equipment and facilities have documented preventative maintenance procedures that detail the process for and frequency of performance in accordance with the manufacturer’s or internal specifications. Preventative and corrective maintenance of the data center equipment is scheduled through a standard change process according to documented procedures.

System Access Control

TroyCoLIVE servers use a Linux based implementation customized for the Services. TroyCoLIVE employs a review process to increase the security of the operating systems used to provide the Services and enhance the security products in production environments.

TroyCoLIVE has, and maintains, a set of information security policies for its personnel. TroyCoLIVE infrastructure, development and support personnel are responsible for the ongoing monitoring of TroyCoLIVE’s infrastructure security, the review of the Services, and responding to security incidents.

TroyCoLIVE’s internal access control policies and processes are designed to prevent unauthorized persons and/or systems from gaining access to systems used to process customer data, including personal data. TroyCoLIVE aims to design its systems to: (i) only allow authorized persons to access data they are authorized to access; and (ii) ensure that personal data cannot be read, copied, altered or removed without authorization during processing, use and after recording. TroyCoLIVE employs an access management system to control personnel access to production servers, and only provides access to authorized personnel. The following may, among other controls, be applied depending upon the particular Services ordered: authentication via passwords and/or two-factor authentication, SSH keys, authorization processes, change management processes, logical access to the data centers is restricted and protected by firewall/VLAN, logging and monitoring of access on several levels. The granting or modification of access rights is based on: the authorized personnel’s job responsibilities; job duty requirements necessary to perform authorized tasks; and a strict need to know basis. The granting or modification of access rights must also be in accordance with TroyCoLIVE’s internal data access policies. 

Services Access Control

Customers must authenticate themselves via an authentication system in order to use the Services. Each application checks credentials in order to allow the display of data to the Customer.

The following may, among other controls, be applied depending upon the particular Services ordered: authentication via passwords and/or two-factor authentication, SSH keys, authorization processes, change management processes, and logging of access on several levels. Depending upon the particular Services ordered the following controls may also apply: unique identifiers are attributed to the responsible individual, revoke access mechanisms on consecutive failed login attempts and lockout time periods, password expiry and reset mechanisms, password complexity requirements.

Data Access Control 

TroyCoLIVE stores data in a multi-tenant environment, meaning that multiple customers’ deployments are stored on the same physical hardware. TroyCoLIVE uses logical isolation to segregate each Customer’s data and logically separates each Customer’s data from that of others. This provides the scale while rigorously preventing customers from accessing one another’s data.

Customer is given control over specific controls for sharing access to the data to End Users for specific purposes in accordance with the functionality of the Services. Customer may choose to make use of these controls. TroyCoLIVE makes available certain logging capability.

Direct access to customer data is restricted and in case such is required access rights are established and enforced only to properly authorized staff in addition to the access control rules set forth in the previous Sections. 

Transmission Control

Data centers are typically connected via high-speed private links to provide secure and fast data transfer between data centers. This is designed to prevent data from being read, copied, altered or removed without authorization during electronic transfer or transport or while being recorded onto data storage media or exchanged within the data center. 

For data in transit, TroyCoLIVE uses industry standard transport protocols such as SSL and TLS between Customer devices and TroyCoLIVE’s Services and data centers, and within data centers themselves. Except as otherwise specified for the Services (including within the Order, the applicable Agreement or the User documentation of the Services), transmissions of data outside the Service environment are encrypted. Some functionalities of the Services may enable the Customer to choose unencrypted communications in their use of the Service. Customer is solely responsible for the results of its decision to use such unencrypted communications or transmissions. 

Input Control

The Personal Data source is under the control of the Customer, and Personal Data integration into the system, is managed by secured file transfer, via web services or entered into the application from the Customer. As set forth in Section Transmission Control above, some functionalities of the Services permit Customers to use unencrypted file transfer protocols. In such cases, Customer is solely responsible for its decision to use such unencrypted field transfer protocols. 

The Services will not introduce any viruses to Customer Data; however, the Services do not scan for viruses that could be included in attachments or other Personal Data uploaded into the Services by Customer. Any such uploaded attachments will not be executed in the Services and therefore will not damage or compromise the Service.

Network Control

TroyCoLIVE blocks unauthorized traffic to and within the data centers using a variety of technologies such as firewalls, NATs, partitioned Local Area Networks and physical separation of back-end servers from public-facing interfaces.

TroyCoLIVE employs multiple layers of network devices and intrusion detection to protect its external attack surface. TroyCoLIVE considers potential attack vectors and incorporates appropriate purpose built technologies into external facing systems.

TroyCoLIVE and authorized personnel will monitor the Services for unauthorised intrusions using network-based intrusion detection mechanisms. Intrusion detection is intended to provide insight into ongoing attack activities and provide adequate information to respond to incidents. SiIteGround’s intrusion detection involves tightly controlling the network communication attack surface through preventative measures such as firewalls, employing intelligent detection controls at data entry points and employing technologies that automatically remedy certain dangerous situations.

Incident Response

TroyCoLIVE maintains security incident management policies and procedures and monitors a variety of communication channels for security incidents. TroyCoLIVE personnel will react promptly to known incidents and will promptly notify Customer in the event TroyCoLIVE becomes aware of an actual or reasonably suspected unauthorised disclosure of Personal Data.

System Logs

TroyCoLIVE ensures that processing systems used to store Customer Data log information to their respective system log facility. Log entries are maintained and stored in case there is suspicion of inappropriate access and an analysis is required. Logging is kept securely to prevent tampering.

Reliability and Backup

For the Services, TroyCoLIVE ensures that backups are taken on a regular basis. Backups are secured using a combination of technical and physical controls. 

TroyCoLIVE ensures that the systems where Customer Data is stored have a disaster recovery facility and are governed under disaster recovery plan. In the event production facilities are to be rendered unavailable, TroyCoLIVE will execute recovery plans to restore operation in a timely manner. TroyCoLIVE has designed and regularly plans and tests its disaster recovery plans.

Data destruction

When Customers delete data or leave the Service, TroyCoLIVE ensures the data is deleted as per the terms in the applicable Agreement. TroyCoLIVE Sub-processor’s production data centres employs strict procedures for reuse, redeployment, data destruction and decommission of disks and hardware.

Subprocessor Security

Before onboarding Sub-processors, TroyCoLIVE conducts due diligence of the security and privacy practices of Sub-processors to ensure Sub-processors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. The Sub-processor is required to enter into appropriate security, confidentiality and privacy contract terms.

System Changes and Enhancements

TroyCoLIVE may enhance and implement changes in the Services during the term of the Agreement. Security controls, procedures, policies and features may change or be added. TroyCoLIVE will provide security controls that deliver a level of security protection that is not materially lower than that provided as of the Effective Date.

Annex 3: List of Sub-processors

Available upon request.

Annex 4: International Data Transfer Agreement

This International Data Transfer Agreement (IDTA) has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties and signatures 

Table 2: Transfer Details

Table 3: Transferred Data

Table 4: Security Requirements

Part 2: Extra Protection Clauses

Part 3: Commercial Clauses

Part 4: Mandatory Clauses

Information that helps you to understand this IDTA

1.       This IDTA and Linked Agreements

1.1    Each Party agrees to be bound by the terms and conditions set out in the IDTA, in exchange for the other Party also agreeing to be bound by the IDTA.

1.2    This IDTA is made up of:

1.2.1    Part one: Tables;

1.2.2    Part two: Extra Protection Clauses;

1.2.3    Part three: Commercial Clauses; and

1.2.4    Part four: Mandatory Clauses.

1.3    The IDTA starts on the Start Date and ends as set out in Sections 29 or 30.

1.4    If the Importer is a Processor or Sub-Processor instructed by the Exporter: the Exporter must ensure that, on or before the Start Date and during the Term, there is a Linked Agreement which is enforceable between the Parties and which complies with Article 28 UK GDPR (and which they will ensure continues to comply with Article 28 UK GDPR).

1.5    References to the Linked Agreement or to the Commercial Clauses are to that Linked Agreement or to those Commercial Clauses only in so far as they are consistent with the Mandatory Clauses.

2.       Legal Meaning of Words

2.1    If a word starts with a capital letter it has the specific meaning set out in the Legal Glossary in Section 36.

2.2    To make it easier to read and understand, this IDTA contains headings and guidance notes. Those are not part of the binding contract which forms the IDTA.

3.       You have provided all the information required

3.1    The Parties must ensure that the information contained in Part one: Tables is correct and complete at the Start Date and during the Term.

3.2    In Table 2: Transfer Details, if the selection that the Parties are Controllers, Processors or Sub-Processors is wrong (either as a matter of fact or as a result of applying the UK Data Protection Laws) then:

3.2.1    the terms and conditions of the Approved IDTA which apply to the correct option which was not selected will apply; and

3.2.2    the Parties and any Relevant Data Subjects are entitled to enforce the terms and conditions of the Approved IDTA which apply to that correct option.

3.3    In Table 2: Transfer Details, if the selection that the UK GDPR applies is wrong (either as a matter of fact or as a result of applying the UK Data Protection Laws), then the terms and conditions of the IDTA will still apply to the greatest extent possible.

4.       How to sign the IDTA

4.1    The Parties may choose to each sign (or execute):

4.1.1    the same copy of this IDTA;

4.1.2    two copies of the IDTA. In that case, each identical copy is still an original of this IDTA, and together all those copies form one agreement;

4.1.3    a separate, identical copy of the IDTA. In that case, each identical copy is still an original of this IDTA, and together all those copies form one agreement,

unless signing (or executing) in this way would mean that the IDTA would not be binding on the Parties under Local Laws.

5.       Changing this IDTA

5.1    Each Party must not change the Mandatory Clauses as set out in the Approved IDTA, except only:

5.1.1    to ensure correct cross-referencing: cross-references to Part one: Tables (or any Table), Part two: Extra Protections, and/or Part three: Commercial Clauses can be changed where the Parties have set out the information in a different format, so that the cross-reference is to the correct location of the same information, or where clauses have been removed as they do not apply, as set out below;

5.1.2    to remove those Sections which are expressly stated not to apply to the selections made by the Parties in Table 2: Transfer Details, that the Parties are Controllers, Processors or Sub-Processors and/or that the Importer is subject to, or not subject to, the UK GDPR. The Exporter and Importer understand and acknowledge that any removed Sections may still apply and form a part of this IDTA if they have been removed incorrectly, including because the wrong selection is made in Table 2: Transfer Details;

5.1.3    so the IDTA operates as a multi-party agreement if there are more than two Parties to the IDTA. This may include nominating a lead Party or lead Parties which can make decisions on behalf of some or all of the other Parties which relate to this IDTA (including reviewing Table 4: Security Requirements and Part two: Extra Protection Clauses, and making updates to Part one: Tables (or any Table), Part two: Extra Protection Clauses, and/or Part three: Commercial Clauses); and/or

5.1.4    to update the IDTA to set out in writing any changes made to the Approved IDTA under Section 5.4, if the Parties want to. The changes will apply automatically without updating them as described in Section 5.4;

provided that the changes do not reduce the Appropriate Safeguards.

5.2    If the Parties wish to change the format of the information included in Part one: Tables, Part two: Extra Protection Clauses or Part three: Commercial Clauses of the Approved IDTA, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

5.3    If the Parties wish to change the information included in Part one: Tables, Part two: Extra Protection Clauses or Part three: Commercial Clauses of this IDTA (or the equivalent information), they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

5.4    From time to time, the ICO may publish a revised Approved IDTA which:

5.4.1    makes reasonable and proportionate changes to the Approved IDTA, including correcting errors in the Approved IDTA; and/or

5.4.2    reflects changes to UK Data Protection Laws.

The revised Approved IDTA will specify the start date from which the changes to the Approved IDTA are effective and whether an additional Review Date is required as a result of the changes. This IDTA is automatically amended as set out in the revised Approved IDTA from the start date specified.

6.       Understanding this IDTA

6.1    This IDTA must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

6.2    If there is any inconsistency or conflict between UK Data Protection Laws and this IDTA, the UK Data Protection Laws apply.

6.3    If the meaning of the IDTA is unclear or there is more than one meaning, the meaning which most closely aligns with the UK Data Protection Laws applies.

6.4    Nothing in the IDTA (including the Commercial Clauses or the Linked Agreement) limits or excludes either Party’s liability to Relevant Data Subjects or to the ICO under this IDTA or under UK Data Protection Laws.

6.5    If any wording in Parts one, two or three contradicts the Mandatory Clauses, and/or seeks to limit or exclude any liability to Relevant Data Subjects or to the ICO, then that wording will not apply.

6.6    The Parties may include provisions in the Linked Agreement which provide the Parties with enhanced rights otherwise covered by this IDTA. These enhanced rights may be subject to commercial terms, including payment, under the Linked Agreement, but this will not affect the rights granted under this IDTA.

6.7    If there is any inconsistency or conflict between this IDTA and a Linked Agreement or any other agreement, this IDTA overrides that Linked Agreement or any other agreements, even if those agreements have been negotiated by the Parties. The exceptions to this are where (and in so far as):

6.7.1    the inconsistent or conflicting terms of the Linked Agreement or other agreement provide greater protection for the Relevant Data Subject’s rights, in which case those terms will override the IDTA; and

6.7.2    a Party acts as Processor and the inconsistent or conflicting terms of the Linked Agreement are obligations on that Party expressly required by Article 28 UK GDPR, in which case those terms will override the inconsistent or conflicting terms of the IDTA in relation to Processing by that Party as Processor.

6.8    The words “include”, “includes”, “including”, “in particular” are used to set out examples and not to set out a finite list.

6.9    References to:

6.9.1    singular or plural words or people, also includes the plural or singular of those words or people;

6.9.2    legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this IDTA has been signed; and

6.9.3    any obligation not to do something, includes an obligation not to allow or cause that thing to be done by anyone else.

7.       Which laws apply to this IDTA

7.1    This IDTA is governed by the laws of the UK country set out in Table 2: Transfer Details. If no selection has been made, it is the laws of England and Wales. This does not apply to Section 35 which is always governed by the laws of England and Wales.

How this IDTA provides Appropriate Safeguards

8.       The Appropriate Safeguards

8.1    The purpose of this IDTA is to ensure that the Transferred Data has Appropriate Safeguards when Processed by the Importer during the Term. This standard is met when and for so long as:

8.1.1    both Parties comply with the IDTA, including the Security Requirements and any Extra Protection Clauses; and

8.1.2    the Security Requirements and any Extra Protection Clauses provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach, including considering any Special Category Data within the Transferred Data.

8.2    The Exporter must:

8.2.1    ensure and demonstrate that this IDTA (including any Security Requirements and Extra Protection Clauses) provides Appropriate Safeguards; and

8.2.2    (if the Importer reasonably requests) provide it with a copy of any TRA.

8.3    The Importer must:

8.3.1    before receiving any Transferred Data, provide the Exporter with all relevant information regarding Local Laws and practices and the protections and risks which apply to the Transferred Data when it is Processed by the Importer, including any information which may reasonably be required for the Exporter to carry out any TRA (the “Importer Information”);

8.3.2    co-operate with the Exporter to ensure compliance with the Exporter’s obligations under the UK Data Protection Laws;

8.3.3    review whether any Importer Information has changed, and whether any Local Laws contradict its obligations in this IDTA and take reasonable steps to verify this, on a regular basis. These reviews must be at least as frequent as the Review Dates; and

8.3.4    inform the Exporter as soon as it becomes aware of any Importer Information changing, and/or any Local Laws which may prevent or limit the Importer complying with its obligations in this IDTA. This information then forms part of the Importer Information.

8.4    The Importer must ensure that at the Start Date and during the Term:

8.4.1    the Importer Information is accurate;

8.4.2    it has taken reasonable steps to verify whether there are any Local Laws which contradict its obligations in this IDTA or any additional information regarding Local Laws which may be relevant to this IDTA.

8.5    Each Party must ensure that the Security Requirements and Extra Protection Clauses provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.

9.       Reviews to ensure the Appropriate Safeguards continue

9.1    Each Party must:

9.1.1    review this IDTA (including the Security Requirements and Extra Protection Clauses and the Importer Information) at regular intervals, to ensure that the IDTA remains accurate and up to date and continues to provide the Appropriate Safeguards. Each Party will carry out these reviews as frequently as the relevant Review Dates or sooner; and

9.1.2    inform the other party in writing as soon as it becomes aware if any information contained in either this IDTA, any TRA or Importer Information is no longer accurate and up to date.

9.2    If, at any time, the IDTA no longer provides Appropriate Safeguards the Parties must Without Undue Delay:

9.2.1    pause transfers and Processing of Transferred Data whilst a change to the Tables is agreed. The Importer may retain a copy of the Transferred Data during this pause, in which case the Importer must carry out any Processing required to maintain, so far as possible, the measures it was taking to achieve the Appropriate Safeguards prior to the time the IDTA no longer provided Appropriate Safeguards, but no other Processing;

9.2.2    agree a change to Part one: Tables or Part two: Extra Protection Clauses which will maintain the Appropriate Safeguards (in accordance with Section 5); and

9.2.3    where a change to Part one: Tables or Part two: Extra Protection Clauses which maintains the Appropriate Safeguards cannot be agreed, the Exporter must end this IDTA by written notice on the Importer.

10.   The ICO

10.1 Each Party agrees to comply with any reasonable requests made by the ICO in relation to this IDTA or its Processing of the Transferred Data.

10.2 The Exporter will provide a copy of any TRA, the Importer Information and this IDTA to the ICO, if the ICO requests.

10.3 The Importer will provide a copy of any Importer Information and this IDTA to the ICO, if the ICO requests.

The Exporter

11.   Exporter’s obligations

11.1 The Exporter agrees that UK Data Protection Laws apply to its Processing of the Transferred Data, including transferring it to the Importer.

11.2 The Exporter must:

11.2.1 comply with the UK Data Protection Laws in transferring the Transferred Data to the Importer;

11.2.2 comply with the Linked Agreement as it relates to its transferring the Transferred Data to the Importer; and

11.2.3 carry out reasonable checks on the Importer’s ability to comply with this IDTA, and take appropriate action including under Section 9.2, Section 29 or Section 30, if at any time it no longer considers that the Importer is able to comply with this IDTA or to provide Appropriate Safeguards.

11.3 The Exporter must comply with all its obligations in the IDTA, including any in the Security Requirements, and any Extra Protection Clauses and any Commercial Clauses.

11.4 The Exporter must co-operate with reasonable requests of the Importer to pass on notices or other information to and from Relevant Data Subjects or any Third Party Controller where it is not reasonably practical for the Importer to do so. The Exporter may pass these on via a third party if it is reasonable to do so.

11.5 The Exporter must co-operate with and provide reasonable assistance to the Importer, so that the Importer is able to comply with its obligations to the Relevant Data Subjects under Local Law and this IDTA.

The Importer

12.   General Importer obligations

12.1 The Importer must:

12.1.1 only Process the Transferred Data for the Purpose;

12.1.2 comply with all its obligations in the IDTA, including in the Security Requirements, any Extra Protection Clauses and any Commercial Clauses;

12.1.3 comply with all its obligations in the Linked Agreement which relate to its Processing of the Transferred Data;

12.1.4 keep a written record of its Processing of the Transferred Data, which demonstrate its compliance with this IDTA, and provide this written record if asked to do so by the Exporter;

12.1.5 if the Linked Agreement includes rights for the Exporter to obtain information or carry out an audit, provide the Exporter with the same rights in relation to this IDTA; and

12.1.6 if the ICO requests, provide the ICO with the information it would be required on request to provide to the Exporter under this Section 12.1 (including the written record of its Processing, and the results of audits and inspections).

12.2 The Importer must co-operate with and provide reasonable assistance to the Exporter and any Third Party Controller, so that the Exporter and any Third Party Controller are able to comply with their obligations under UK Data Protection Laws and this IDTA.

13.   Importer’s obligations if it is subject to the UK Data Protection Laws

13.1 If the Importer’s Processing of the Transferred Data is subject to UK Data Protection Laws, it agrees that:

13.1.1 UK Data Protection Laws apply to its Processing of the Transferred Data, and the ICO has jurisdiction over it in that respect; and

13.1.2 it has and will comply with the UK Data Protection Laws in relation to the Processing of the Transferred Data.

13.2 If Section 13.1 applies and the Importer complies with Section 13.1, it does not need to comply with:

•   Section 14 (Importer’s obligations to comply with key data protection principles);
•   Section 15 (What happens if there is an Importer Personal Data Breach);
•   Section 15 (How Relevant Data Subjects can exercise their data subject rights); and
•   Section 21 (How Relevant Data Subjects can exercise their data subject rights – if the Importer is the Exporter’s Processor or Sub-Processor).

14.   Importer’s obligations to comply with key data protection principles

14.1 The Importer does not need to comply with this Section 14 if it is the Exporter’s Processor or Sub-Processor. 

14.2 The Importer must:

14.2.1 ensure that the Transferred Data it Processes is adequate, relevant and limited to what is necessary for the Purpose;

14.2.2 ensure that the Transferred Data it Processes is accurate and (where necessary) kept up to date, and (where appropriate considering the Purposes) correct or delete any inaccurate Transferred Data it becomes aware of Without Undue Delay; and

14.2.3 ensure that it Processes the Transferred Data for no longer than is reasonably necessary for the Purpose.

15.   What happens if there is an Importer Personal Data Breach

15.1 If there is an Importer Personal Data Breach, the Importer must:

15.1.1 take reasonable steps to fix it, including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again. If the Importer is the Exporter’s Processor or Sub-Processor: these steps must comply with the Exporter’s instructions and the Linked Agreement and be in co-operation with the Exporter and any Third Party Controller; and

15.1.2 ensure that the Security Requirements continue to provide (or are changed in accordance with this IDTA so they do provide) a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.

15.2 If the Importer is a Processor or Sub-Processor: if there is an Importer Personal Data Breach, the Importer must:

15.2.1 notify the Exporter Without Undue Delay after becoming aware of the breach, providing the following information:

15.2.1.1 a description of the nature of the Importer Personal Data Breach;

15.2.1.2 (if and when possible) the categories and approximate number of Data Subjects and Transferred Data records concerned;

15.2.1.3 likely consequences of the Importer Personal Data Breach;

15.2.1.4 steps taken (or proposed to be taken) to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Appropriate Safeguards are in place;

15.2.1.5 contact point for more information; and

15.2.1.6 any other information reasonably requested by the Exporter,

15.2.2 if it is not possible for the Importer to provide all the above information at the same time, it may do so in phases, Without Undue Delay; and

15.2.3 assist the Exporter (and any Third Party Controller) so the Exporter (or any Third Party Controller) can inform Relevant Data Subjects or the ICO or any other relevant regulator or authority about the Importer Personal Data Breach Without Undue Delay.

15.3 If the Importer is a Controller: if the Importer Personal Data Breach is likely to result in a risk to the rights or freedoms of any Relevant Data Subject the Importer must notify the Exporter Without Undue Delay after becoming aware of the breach, providing the following information:

15.3.1 a description of the nature of the Importer Personal Data Breach;

15.3.2 (if and when possible) the categories and approximate number of Data Subjects and Transferred Data records concerned;

15.3.3 likely consequences of the Importer Personal Data Breach;

15.3.4 steps taken (or proposed to be taken) to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Appropriate Safeguards are in place;

15.3.5 contact point for more information; and

15.3.6 any other information reasonably requested by the Exporter.

If it is not possible for the Importer to provide all the above information at the same time, it may do so in phases, Without Undue Delay.

15.4 If the Importer is a Controller: if the Importer Personal Data Breach is likely to result in a high risk to the rights or freedoms of any Relevant Data Subject, the Importer must inform those Relevant Data Subjects Without Undue Delay, except in so far as it requires disproportionate effort, and provided the Importer ensures that there is a public communication or similar measures whereby Relevant Data Subjects are informed in an equally effective manner.

15.5 The Importer must keep a written record of all relevant facts relating to the Importer Personal Data Breach, which it will provide to the Exporter and the ICO on request.

This record must include the steps it takes to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Security Requirements continue to provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.

16.Transferring on the Transferred Data

16.1 The Importer may only transfer on the Transferred Data to a third party if it is permitted to do so in Table 2: Transfer Details Table, the transfer is for the Purpose, the transfer does not breach the Linked Agreement, and one or more of the following apply:

16.1.1 the third party has entered into a written contract with the Importer containing the same level of protection for Data Subjects as contained in this IDTA (based on the role of the recipient as controller or processor), and the Importer has conducted a risk assessment to ensure that the Appropriate Safeguards will be protected by that contract; or

16.1.2 the third party has been added to this IDTA as a Party; or

16.1.3 if the Importer was in the UK, transferring on the Transferred Data would comply with Article 46 UK GDPR; or

16.1.4 if the Importer was in the UK transferring on the Transferred Data would comply with one of the exceptions in Article 49 UK GDPR; or

16.1.5 the transfer is to the UK or an Adequate Country.

16.2 The Importer does not need to comply with Section 16.1 if it is transferring on Transferred Data and/or allowing access to the Transferred Data in accordance with Section 23 (Access Requests and Direct Access).

17.   Importer’s responsibility if it authorises others to perform its obligations

17.1 The Importer may sub-contract its obligations in this IDTA to a Processor or Sub-Processor (provided it complies with Section 16).

17.2 If the Importer is the Exporter’s Processor or Sub-Processor: it must also comply with the Linked Agreement or be with the written consent of the Exporter.

17.3 The Importer must ensure that any person or third party acting under its authority, including a Processor or Sub-Processor, must only Process the Transferred Data on its instructions.

17.4 The Importer remains fully liable to the Exporter, the ICO and Relevant Data Subjects for its obligations under this IDTA where it has sub-contracted any obligations to its Processors and Sub-Processors, or authorised an employee or other person to perform them (and references to the Importer in this context will include references to its Processors, Sub-Processors or authorised persons).

What rights do individuals have?

18.   The right to a copy of the IDTA

18.1 If a Party receives a request from a Relevant Data Subject for a copy of this IDTA:

18.1.1 it will provide the IDTA to the Relevant Data Subject and inform the other Party, as soon as reasonably possible;

18.1.2 it does not need to provide copies of the Linked Agreement, but it must provide all the information from those Linked Agreements referenced in the Tables;

18.1.3 it may redact information in the Tables or the information provided from the Linked Agreement if it is reasonably necessary to protect business secrets or confidential information, so long as it provides the Relevant Data Subject with a summary of those redactions so that the Relevant Data Subject can understand the content of the Tables or the information provided from the Linked Agreement.

19.   The right to Information about the Importer and its Processing

19.1 The Importer does not need to comply with this Section 19 if it is the Exporter’s Processor or Sub-Processor.

19.2 The Importer must ensure that each Relevant Data Subject is provided with details of:

•   the Importer (including contact details and the Importer Data Subject Contact);
•   the Purposes; and
•   any recipients (or categories of recipients) of the Transferred Data;

The Importer can demonstrate it has complied with this Section 19.2 if the information is given (or has already been given) to the Relevant Data Subjects by the Exporter or another party.

The Importer does not need to comply with this Section 19.2 in so far as to do so would be impossible or involve a disproportionate effort, in which case, the Importer must make the information publicly available.

19.3 The Importer must keep the details of the Importer Data Subject Contact up to date and publicly available. This includes notifying the Exporter in writing of any such changes.

19.4 The Importer must make sure those contact details are always easy to access for all Relevant Data Subjects and be able to easily communicate with Data Subjects in the English language Without Undue Delay.

20.   How Relevant Data Subjects can exercise their data subject rights

20.1 The Importer does not need to comply with this Section 20 if it is the Exporter’s Processor or Sub-Processor.

20.2 If an individual requests, the Importer must confirm whether it is Processing their Personal Data as part of the Transferred Data.

20.3 The following Sections of this Section 20, relate to a Relevant Data Subject’s Personal Data which forms part of the Transferred Data the Importer is Processing.

20.4 If the Relevant Data Subject requests, the Importer must provide them with a copy of their Transferred Data:

20.4.1 Without Undue Delay (and in any event within one month);

20.4.2 at no greater cost to the Relevant Data Subject than it would be able to charge if it were subject to the UK Data Protection Laws;

20.4.3 in clear and plain English that is easy to understand; and

20.4.4 in an easily accessible form 

together with

20.4.5 (if needed) a clear and plain English explanation of the Transferred Data so that it is understandable to the Relevant Data Subject; and

20.4.6 information that the Relevant Data Subject has the right to bring a claim for compensation under this IDTA.

20.5 If a Relevant Data Subject requests, the Importer must:

20.5.1 rectify inaccurate or incomplete Transferred Data;

20.5.2 erase Transferred Data if it is being Processed in breach of this IDTA;

20.5.3 cease using it for direct marketing purposes; and

20.5.4 comply with any other reasonable request of the Relevant Data Subject, which the Importer would be required to comply with if it were subject to the UK Data Protection Laws.

20.6 The Importer must not use the Transferred Data to make decisions about the Relevant Data Subject based solely on automated processing, including profiling (the “Decision-Making”), which produce legal effects concerning the Relevant Data Subject or similarly significantly affects them, except if it is permitted by Local Law and:

20.6.1 the Relevant Data Subject has given their explicit consent to such Decision-Making; or

20.6.2 Local Law has safeguards which provide sufficiently similar protection for the Relevant Data Subjects in relation to such Decision-Making, as to the relevant protection the Relevant Data Subject would have if such Decision-Making was in the UK; or

20.6.3 the Extra Protection Clauses provide safeguards for the Decision-Making which provide sufficiently similar protection for the Relevant Data Subjects in relation to such Decision-Making, as to the relevant protection the Relevant Data Subject would have if such Decision-Making was in the UK.

21.   How Relevant Data Subjects can exercise their data subject rights– if the Importer is the Exporter’s Processor or Sub-Processor

21.1 Where the Importer is the Exporter’s Processor or Sub-Processor: If the Importer receives a request directly from an individual which relates to the Transferred Data it must pass that request on to the Exporter Without Undue Delay. The Importer must only respond to that individual as authorised by the Exporter or any Third Party Controller.

22.Rights of Relevant Data Subjects are subject to the exemptions in the UK Data Protection Laws

22.1 The Importer is not required to respond to requests or provide information or notifications under Sections 18, 19, 20, 21 and 23 if:

22.1.1 it is unable to reasonably verify the identity of an individual making the request; or

22.1.2 the requests are manifestly unfounded or excessive, including where requests are repetitive. In that case the Importer may refuse the request or may charge the Relevant Data Subject a reasonable fee; or

22.1.3 a relevant exemption would be available under UK Data Protection Laws, were the Importer subject to the UK Data Protection Laws.

If the Importer refuses an individual’s request or charges a fee under Section 22.1.2 it will set out in writing the reasons for its refusal or charge, and inform the Relevant Data Subject that they are entitled to bring a claim for compensation under this IDTA in the case of any breach of this IDTA.

How to give third parties access to Transferred Data under Local Laws

23.   Access requests and direct access

23.1 In this Section ‎23 an “Access Request” is a legally binding request (except for requests only binding by contract law) to access any Transferred Data and “Direct Access” means direct access to any Transferred Data by public authorities of which the Importer is aware.

23.2 The Importer may disclose any requested Transferred Data in so far as it receives an Access Request, unless in the circumstances it is reasonable for it to challenge that Access Request on the basis there are significant grounds to believe that it is unlawful.

23.3 In so far as Local Laws allow and it is reasonable to do so, the Importer will Without Undue Delay provide the following with relevant information about any Access Request or Direct Access: the Exporter; any Third Party Controller; and where the Importer is a Controller, any Relevant Data Subjects.

23.4 In so far as Local Laws allow, the Importer must:

23.4.1 make and keep a written record of Access Requests and Direct Access, including (if known): the dates, the identity of the requestor/accessor, the purpose of the Access Request or Direct Access, the type of data requested or accessed, whether it was challenged or appealed, and the outcome; and the Transferred Data which was provided or accessed; and

23.4.2 provide a copy of this written record to the Exporter on each Review Date and any time the Exporter or the ICO reasonably requests.

24.   Giving notice

24.1 If a Party is required to notify any other Party in this IDTA it will be marked for the attention of the relevant Key Contact and sent by e-mail to the e-mail address given for the Key Contact.

24.2 If the notice is sent in accordance with Section 24.1, it will be deemed to have been delivered at the time the e-mail was sent, or if that time is outside of the receiving Party’s normal business hours, the receiving Party’s next normal business day, and provided no notice of non-delivery or bounceback is received.

24.3 The Parties agree that any Party can update their Key Contact details by giving 14 days’ (or more) notice in writing to the other Party.

25.   General clauses

25.1 In relation to the transfer of the Transferred Data to the Importer and the Importer’s Processing of the Transferred Data, this IDTA and any Linked Agreement:

25.1.1 contain all the terms and conditions agreed by the Parties; and

25.1.2 override all previous contacts and arrangements, whether oral or in writing.

25.2 If one Party made any oral or written statements to the other before entering into this IDTA (which are not written in this IDTA) the other Party confirms that it has not relied on those statements and that it will not have a legal remedy if those statements are untrue or incorrect, unless the statement was made fraudulently.

25.3 Neither Party may novate, assign or obtain a legal charge over this IDTA (in whole or in part) without the written consent of the other Party, which may be set out in the Linked Agreement.

25.4 Except as set out in Section 17.1, neither Party may sub contract its obligations under this IDTA without the written consent of the other Party, which may be set out in the Linked Agreement.

25.5 This IDTA does not make the Parties a partnership, nor appoint one Party to act as the agent of the other Party.

25.6 If any Section (or part of a Section) of this IDTA is or becomes illegal, invalid or unenforceable, that will not affect the legality, validity and enforceability of any other Section (or the rest of that Section) of this IDTA.

25.7 If a Party does not enforce, or delays enforcing, its rights or remedies under or in relation to this IDTA, this will not be a waiver of those rights or remedies. In addition, it will not restrict that Party’s ability to enforce those or any other right or remedy in future.

25.8 If a Party chooses to waive enforcing a right or remedy under or in relation to this IDTA, then this waiver will only be effective if it is made in writing. Where a Party provides such a written waiver:

25.8.1 it only applies in so far as it explicitly waives specific rights or remedies;

25.8.2 it shall not prevent that Party from exercising those rights or remedies in the future (unless it has explicitly waived its ability to do so); and

25.8.3 it will not prevent that Party from enforcing any other right or remedy in future.

What happens if there is a breach of this IDTA?

26.   Breaches of this IDTA

26.1 Each Party must notify the other Party in writing (and with all relevant details) if it:

26.1.1 has breached this IDTA; or

26.1.2 it should reasonably anticipate that it may breach this IDTA, and provide any information about this which the other Party reasonably requests.

26.2 In this IDTA “Significant Harmful Impact” means that there is more than a minimal risk of a breach of the IDTA causing (directly or indirectly) significant damage to any Relevant Data Subject or the other Party.

27.   Breaches of this IDTA by the Importer

27.1 If the Importer has breached this IDTA, and this has a Significant Harmful Impact, the Importer must take steps Without Undue Delay to end the Significant Harmful Impact, and if that is not possible to reduce the Significant Harmful Impact as much as possible.

27.2 Until there is no ongoing Significant Harmful Impact on Relevant Data Subjects:

27.2.1 the Exporter must suspend sending Transferred Data to the Importer;

27.2.2 If the Importer is the Exporter’s Processor or Sub-Processor: if the Exporter requests, the importer must securely delete all Transferred Data or securely return it to the Exporter (or a third party named by the Exporter); and

27.2.3 if the Importer has transferred on the Transferred Data to a third party receiver under Section 16, and the breach has a Significant Harmful Impact on Relevant Data Subject when it is Processed by or on behalf of that third party receiver, the Importer must:

27.2.3.1 notify the third party receiver of the breach and suspend sending it Transferred Data; and

27.2.3.2 if the third party receiver is the Importer’s Processor or Sub-Processor: make the third party receiver securely delete all Transferred Data being Processed by it or on its behalf, or securely return it to the Importer (or a third party named by the Importer).

27.3 If the breach cannot be corrected Without Undue Delay, so there is no ongoing Significant Harmful Impact on Relevant Data Subjects, the Exporter must end this IDTA under Section 30.1.

28.   Breaches of this IDTA by the Exporter

28.1 If the Exporter has breached this IDTA, and this has a Significant Harmful Impact, the Exporter must take steps Without Undue Delay to end the Significant Harmful Impact and if that is not possible to reduce the Significant Harmful Impact as much as possible.

28.2 Until there is no ongoing risk of a Significant Harmful Impact on Relevant Data Subjects, the Exporter must suspend sending Transferred Data to the Importer.

28.3 If the breach cannot be corrected Without Undue Delay, so there is no ongoing Significant Harmful Impact on Relevant Data Subjects, the Importer must end this IDTA under Section 30.1.

Ending the IDTA

29.How to end this IDTA without there being a breach

29.1 The IDTA will end:

29.1.1 at the end of the Term stated in Table 2: Transfer Details; or

29.1.2 if in Table 2: Transfer Details, the Parties can end this IDTA by providing written notice to the other: at the end of the notice period stated;

29.1.3 at any time that the Parties agree in writing that it will end; or

29.1.4 at the time set out in Section 29.2.

29.2 If the ICO issues a revised Approved IDTA under Section 5.4, if any Party selected in Table 2 “Ending the IDTA when the Approved IDTA changes”, will as a direct result of the changes in the Approved IDTA have a substantial, disproportionate and demonstrable increase in:

29.2.1 its direct costs of performing its obligations under the IDTA; and/or

29.2.2 its risk under the IDTA,

and in either case it has first taken reasonable steps to reduce that cost or risk so that it is not substantial and disproportionate, that Party may end the IDTA at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved IDTA.

30.   How to end this IDTA if there is a breach

30.1 A Party may end this IDTA immediately by giving the other Party written notice if:

30.1.1 the other Party has breached this IDTA and this has a Significant Harmful Impact. This includes repeated minor breaches which taken together have a Significant Harmful Impact, and

30.1.1.1 the breach can be corrected so there is no Significant Harmful Impact, and the other Party has failed to do so Without Undue Delay (which cannot be more than 14 days of being required to do so in writing); or

30.1.1.2 the breach and its Significant Harmful Impact cannot be corrected;

30.1.2 the Importer can no longer comply with Section 8.3, as there are Local Laws which mean it cannot comply with this IDTA and this has a Significant Harmful Impact.

31.   What must the Parties do when the IDTA ends?

31.1 If the parties wish to bring this IDTA to an end or this IDTA ends in accordance with any provision in this IDTA, but the Importer must comply with a Local Law which requires it to continue to keep any Transferred Data then this IDTA will remain in force in respect of any retained Transferred Data for as long as the retained Transferred Data is retained, and the Importer must:

31.1.1 notify the Exporter Without Undue Delay, including details of the relevant Local Law and the required retention period;

31.1.2 retain only the minimum amount of Transferred Data it needs to comply with that Local Law, and the Parties must ensure they maintain the Appropriate Safeguards, and change the Tables and Extra Protection Clauses, together with any TRA to reflect this; and

31.1.3 stop Processing the Transferred Data as soon as permitted by that Local Law and the IDTA will then end and the rest of this Section 29 will apply.

31.2 When this IDTA ends (no matter what the reason is):

31.2.1 the Exporter must stop sending Transferred Data to the Importer;  and

31.2.2 if the Importer is the Exporter’s Processor or Sub-Processor: the Importer must delete all Transferred Data or securely return it to the Exporter (or a third party named by the Exporter), as instructed by the Exporter;

31.2.3 if the Importer is a Controller and/or not the Exporter’s Processor or Sub-Processor: the Importer must securely delete all Transferred Data.

31.2.4 the following provisions will continue in force after this IDTA ends (no matter what the reason is):

•   Section 1 (This IDTA and Linked Agreements);
•   Section 2 (Legal Meaning of Words);
•   Section 6 (Understanding this IDTA);
•   Section 7 (Which laws apply to this IDTA);
•   Section 10 (The ICO);
•   Sections 11.1 and 11.4 (Exporter’s obligations);
•   Sections 12.1.2, 12.1.3, 12.1.4, 12.1.5 and 12.1.6 (General Importer obligations);
•   Section 13.1 (Importer’s obligations if it is subject to UK Data Protection Laws);
•   Section 17 (Importer’s responsibility if it authorised others to perform its obligations);
•   Section 24 (Giving notice);
•   Section 25 (General clauses);
•   Section 31 (What must the Parties do when the IDTA ends);
•   Section 32 (Your liability);
•   Section 33 (How Relevant Data Subjects and the ICO may bring legal claims);
•   Section 34 (Courts legal claims can be brought in);
•   Section 35 (Arbitration); and
•   Section 36 (Legal Glossary).

How to bring a legal claim under this IDTA

32.   Your liability

32.1 The Parties remain fully liable to Relevant Data Subjects for fulfilling their obligations under this IDTA and (if they apply) under UK Data Protection Laws.

32.2 Each Party (in this Section, “Party One”) agrees to be fully liable to Relevant Data Subjects for the entire damage suffered by the Relevant Data Subject, caused directly or indirectly by:

32.2.1 Party One’s breach of this IDTA; and/or

32.2.2 where Party One is a Processor, Party One’s breach of any provisions regarding its Processing of the Transferred Data in the Linked Agreement;

32.2.3 where Party One is a Controller, a breach of this IDTA by the other Party if it involves Party One’s Processing of the Transferred Data (no matter how minimal)

in each case unless Party One can prove it is not in any way responsible for the event giving rise to the damage.

32.3 If one Party has paid compensation to a Relevant Data Subject under Section 32.2, it is entitled to claim back from the other Party that part of the compensation corresponding to the other Party’s responsibility for the damage, so that the compensation is fairly divided between the Parties.

32.4 The Parties do not exclude or restrict their liability under this IDTA or UK Data Protection Laws, on the basis that they have authorised anyone who is not a Party (including a Processor) to perform any of their obligations, and they will remain responsible for performing those obligations.

33.   How Relevant Data Subjects and the ICO may bring legal claims

33.1 The Relevant Data Subjects are entitled to bring claims against the Exporter and/or Importer for breach of the following (including where their Processing of the Transferred Data is involved in a breach of the following by either Party):

•   Section 1 (This IDTA and Linked Agreements);
•   Section 3 (You have provided all the information required by Part one: Tables and Part two: Extra Protection Clauses);
•   Section 8 (The Appropriate Safeguards);
•   Section 9 (Reviews to ensure the Appropriate Safeguards continue);
•   Section 11 (Exporter’s obligations);
•   Section 12 (General Importer Obligations);
•   Section 13 (Importer’s obligations if it is subject to UK Data Protection Laws);
•   Section 14 (Importer’s obligations to comply with key data protection laws);
•   Section 15 (What happens if there is an Importer Personal Data Breach);
•   Section 16 (Transferring on the Transferred Data);
•   Section 17 (Importer’s responsibility if it authorises others to perform its obligations);
•   Section 18 (The right to a copy of the IDTA);
•   Section 19 (The Importer’s contact details for the Relevant Data Subjects);
•   Section 20 (How Relevant Data Subjects can exercise their data subject rights);
•   Section 21 (How Relevant Data Subjects can exercise their data subject rights– if the Importer is the Exporter’s Processor or Sub-Processor);
•   Section 23 (Access Requests and Direct Access);
•   Section 26 (Breaches of this IDTA);
•   Section 27 (Breaches of this IDTA by the Importer);
•   Section 28 (Breaches of this IDTA by the Exporter);
•   Section 30 (How to end this IDTA if there is a breach);
•   Section 31 (What must the Parties do when the IDTA ends); and
•   any other provision of the IDTA which expressly or by implication benefits the Relevant Data Subjects.

33.2 The ICO is entitled to bring claims against the Exporter and/or Importer for breach of the following Sections: Section 10 (The ICO), Sections 11.1 and 11.2 (Exporter’s obligations), Section 12.1.6 (General Importer obligations) and Section 13 (Importer’s obligations if it is subject to UK Data Protection Laws).

33.3 No one else (who is not a Party) can enforce any part of this IDTA (including under the Contracts (Rights of Third Parties) Act 1999).

33.4 The Parties do not need the consent of any Relevant Data Subject or the ICO to make changes to this IDTA, but any changes must be made in accordance with its terms.

33.5 In bringing a claim under this IDTA, a Relevant Data Subject may be represented by a not-for-profit body, organisation or association under the same conditions set out in Article 80(1) UK GDPR and sections 187 to 190 of the Data Protection Act 2018.

34.   Courts legal claims can be brought in

34.1 The courts of the UK country set out in Table 2: Transfer Details have non-exclusive jurisdiction over any claim in connection with this IDTA (including non-contractual claims).

34.2 The Exporter may bring a claim against the Importer in connection with this IDTA (including non-contractual claims) in any court in any country with jurisdiction to hear the claim.

34.3 The Importer may only bring a claim against the Exporter in connection with this IDTA (including non-contractual claims) in the courts of the UK country set out in the Table 2: Transfer Details

34.4 Relevant Data Subjects and the ICO may bring a claim against the Exporter and/or the Importer in connection with this IDTA (including non-contractual claims) in any court in any country with jurisdiction to hear the claim.

34.5 Each Party agrees to provide to the other Party reasonable updates about any claims or complaints brought against it by a Relevant Data Subject or the ICO in connection with the Transferred Data (including claims in arbitration).

35.   Arbitration

35.1 Instead of bringing a claim in a court under Section 34, any Party, or a Relevant Data Subject may elect to refer any dispute arising out of or in connection with this IDTA (including non-contractual claims) to final resolution by arbitration under the Rules of the London Court of International Arbitration, and those Rules are deemed to be incorporated by reference into this Section ‎35.

35.2 The Parties agree to submit to any arbitration started by another Party or by a Relevant Data Subject in accordance with this Section ‎‎35.

35.3 There must be only one arbitrator. The arbitrator (1) must be a lawyer qualified to practice law in one or more of England and Wales, or Scotland, or Northern Ireland and (2) must have experience of acting or advising on disputes relating to UK Data Protection Laws.

35.4 London shall be the seat or legal place of arbitration. It does not matter if the Parties selected a different UK country as the ‘primary place for legal claims to be made’ in Table 2: Transfer Details.

35.5 The English language must be used in the arbitral proceedings.

35.6 English law governs this Section ‎‎35. This applies regardless of whether or not the parties selected a different UK country’s law as the ‘UK country’s law that governs the IDTA’ in Table 2: Transfer Details.

36.   Legal Glossary