Data Processing Addendum

This Data Processing Addendum (“Addendum”) forms part of the TestInvite Terms and Conditions for the Supply of Services (the “Agreement”) between: (i) Vanilya Elektronik Hizmetler ve Bilişim Tic. A.Ş. and its Affiliates (collectively, “TestInvite”) and (ii) Customer and its Affiliates (collectively, “Customer”).

The terms used in this Addendum shall have the meanings set forth in the Agreement unless otherwise provided. Except as modified below, the terms of the Agreement remain in effect.

In consideration of the mutual obligations set out herein, the Parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.

1. Definitions

1.1 In this Addendum, the following terms shall have the meanings set out below:

1.1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, or that is a successor (whether by change of name, dissolution, merger, consolidation, reorganization, sale or other disposition) to any such business entity or its business and assets.

1.1.2 “Applicable Laws” means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which the Customer is subject to EU Data Protection Laws; or (b) the laws of any other jurisdiction as applicable.

1.1.3 “Customer Personal Data” means any Personal Data Processed by TestInvite on behalf of the Customer pursuant to or in connection with the Agreement.

1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other jurisdiction.

1.1.5 “EEA” means the European Economic Area.

1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as implemented into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.

1.1.7 “GDPR” means the EU General Data Protection Regulation 2016/679.

1.1.8 “Restricted Transfer” means a transfer of Customer Personal Data from the Customer to TestInvite outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR).

1.1.9 “Services” means, for the purposes of this Addendum, Services (as defined in the Agreement).

1.1.10 “Standard Contractual Clauses” means the contractual clauses set out in Annex 1 (EU SCC) as amended where required (as the case may be) by Annex 2 (UK SCC) depending on the laws of jurisdiction governing the transfer.

1.1.11 “Subprocessor” means any third party appointed by or on behalf of TestInvite to Process Customer Personal Data.

1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” have the same meaning as in the GDPR.

2. Processing of Customer Personal Data

2.1 This Addendum applies to TestInvite’s Processing of Customer Personal Data in the course of TestInvite providing Services to the Customer. As such, TestInvite is the Processor and the Customer is the Controller.

2.2 TestInvite will only Process Customer Personal Data in accordance with the Customer’s documented instructions unless Processing is required by Applicable Laws to which TestInvite is subject, in which case TestInvite will, to the extent permitted by Applicable Laws, inform the Customer of that legal requirement before Processing the Personal Data.

2.3 The Customer (i) instructs TestInvite and (and authorises TestInvite to instruct each Subprocessor) to Process Customer Personal Data, and in particular, transfer Customer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement; and (ii) represents and warrants that (a) it is and will at all relevant times remain authorised to give such instructions, and (b) all such instructions comply with Applicable Laws.

2.4 TestInvite will promptly notify the Customer if, in TestInvite’s reasonable opinion, any instructions violate Applicable Laws.

2.5 Appendix 1 to this Addendum sets out certain information regarding TestInvite’s Processing of the Customer Personal Data as required by Article 28(3) of the GDPR. Customer may make reasonable amendments to Appendix 1 by written notice to TestInvite from time to time as Customer reasonably considers necessary to meet those requirements.

3. TestInvite Personnel

TestInvite will ensure that any TestInvite employee, agent or contractor who may have access to the Customer Personal Data is subject to confidentiality undertakings in respect of the Customer Personal Data.

4. Security

4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, TestInvite will implement appropriate technical and organisational measures in respect of Customer Personal Data to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2 In assessing the appropriate level of security, TestInvite will take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

5.1 Customer authorises TestInvite to appoint (and permit each Subprocessor appointed in accordance with this Clause 5 to appoint) Subprocessors in accordance with this Clause 5 and any restrictions in the Agreement.

5.2 TestInvite may continue to use those Subprocessors it has engaged as at the date of this Addendum.

5.3 TestInvite will post a notice of the appointment of any new Subprocessor, including details of the Processing to be undertaken by the Subprocessor, on its website (Privacy Policy). If, within 10 business days, Customer notifies TestInvite in writing of any reasonable objections to the proposed appointment, TestInvite will not appoint (or disclose any Customer Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by Customer and Customer has been provided with a reasonable written explanation of the steps taken.

5.4 With respect to each Subprocessor, TestInvite will:

5.4.1 Ensure that the arrangement between TestInvite and the Subprocessor is governed by a written contract including terms offering at least the same level of protection for Customer Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR; and

5.4.2 If that arrangement involves a Restricted Transfer, and if TestInvite does not have, at the time of a Restricted Transfer a certification under the Privacy Shield programme or an arrangement covered under the Trans-Atlantic Data Privacy Framework, ensure that the Standard Contractual Clauses are incorporated into the agreement between TestInvite and the Subprocessor.

5.5 TestInvite will remain responsible for its compliance with the obligations of this Addendum and for any acts or omissions of any Subprocessor that cause TestInvite to breach any of its obligations under this Addendum.

6. Data Subject Rights

6.1 The Services provide the Customer with a number of means by which the Customer may retrieve, correct, delete or restrict Customer Personal Data. Customer may use these means as technical and organizational measures to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from Data Subjects.

6.2 TestInvite will (i) promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and (ii) not respond to that request except as required by Applicable Laws to which TestInvite is subject, in which case TestInvite will, to the extent permitted by Applicable Laws, inform Customer of that legal requirement before TestInvite responds to the request.

7. Personal Data Breach

7.1 TestInvite will notify Customer without undue delay upon becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 TestInvite will cooperate with Customer and take such reasonable commercial steps as requested by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Deletion or Return of Customer Personal Data

8.1 Unless our contract requires otherwise or unless the Customer has requested TestInvite to delete all such Customer Personal Data before such date, subject to Clause 8.3, TestInvite will delete permanently (without an obligation to provide notice):

a) Customer Personal Data in the form of Category 2 - Supplementary Test Taker Data (as defined in Appendix 1), within 1 year of its collection;

b) any other form of Customer Personal Data (including Category 1 - Exam Response Data - (as defined in Appendix 1)), within 5 years from the date on which the Customer ceases to be a Customer.

8.2 For the purposes of clause 8.1 (b), TestInvite has the right to determine whether and when a Customer has ceased to be a Customer in its entire discretion taking into consideration customer engagement. Unless material evidence to the contrary, a Customer shall be deemed to have ceased being a Customer if it has not engaged in a financial transaction with TestInvite at least once on a 1 year rolling basis.

8.3 Notwithstanding the foregoing, TestInvite may retain Customer Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws (and TestInvite may retain business contact information for Customer’s staff); provided, however, that TestInvite will ensure the confidentiality of all such Customer Personal Data and will ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its retention, and for no other purpose.

9. Data Protection Impact Assessments and Audit Rights

9.1 TestInvite will provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of it by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, TestInvite. Customer agrees to exercise any right it may have to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing TestInvite to carry out the audit.

10. Restricted Transfers

10.1 If TestInvite does not have, at the time of a Restricted Transfer, certification under the Privacy Shield programme or an arrangement covered under the Trans-Atlantic Data Privacy Framework, TestInvite will enter into the Standard Contractual Clauses in respect of any Restricted Transfer.

11. General Terms

11.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:

11.1.1 the Parties agree to submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and

11.1.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.

11.2 In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses prevail. In the event of inconsistencies between this Addendum and any other agreements between the Parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum prevail.

11.3 This Addendum remains in effect until termination or expiration of the Agreement.

11.4 The liability of each Party under this Addendum is subject to the exclusions and limitations of liability set out in the Agreement.

11.5 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum will remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties” intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

APPENDIX 1: Subject Matter and Details of Data Processing

This Appendix 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.

Details of the transfer

(a) Data exporter:  

Name: Customer that has engaged TestInvite to provide the Service pursuant to the Agreement or other written or electronic agreement, which govern the provision of the Service to Customer, as such terms or agreement may be updated from time to time (the “Agreement”).

Address: As set out in the Agreement or as supplied to TestInvite.

Contact person’s name, position, and contact details: As set out in the Agreement or as supplied to TestInvite.

Activities relevant to the data transferred under these Clauses: TestInvite provides the Service and Customer uses the Service, and TestInvite processes personal data as described in the Agreement.

(b) Data importer:

Name: Vanilya Elektronik Hizmetler ve Bilişim Tic. A.Ş. d/b/a TestInvite

Address: Esentepe mah. Kore Şehitleri Cad. No:29 Zincirlikuyu Şişli İstanbul.

Contact person’s name, position and contact details: hello@testinvite.com.

Activities relevant to the data transferred under these Clauses: TestInvite provides the Service and Customer uses the Service, and TestInvite processes personal data as described in the Agreement.

(c) Categories of data subjects:

The Personal Data to be Processed by TestInvite on behalf of Customer may relate to, but is not limited to, the following categories of Data Subjects:

• Employees, candidates, students, contractors, agents and volunteers
• Clients, customers and (where applicable) their personnel

(d) Categories of personal data:

The Personal Data to be Processed by TestInvite on behalf of Customer may include, but is not limited to the following categories of Personal Data:

Category 1 - Exam Response Data

• The data subject’s full name, email address and phone number, group name that the company associates with the person, tags, notes taken about the person and similar
• Data subject’s answers to exam questions
• Selected options
• Matches made
• Written texts
• Saved images and videos (camera, microphone, screen)
• Any type of file uploaded (including image, video, document files)
• All results obtained from the exam (general results, section results)
• Information such as browser, operating system and IP from which the exam was accessed
• All logs recorded during the exam
• Flow records such as navigation, viewing and answering within the exam
• technical information, such as Internet Protocol (IP) address, login information, browser type and version, screen resolution, time zone setting, browser plug-in types and versions, browser access, operating system, platform and traffic data, cookies data, web logs and other communication data.

Category 2 - Supplementary Test Taker Data

• Camera and screenshots captured of the data subject or its mouse movements, that are not within the scope of Category 1 data, shortly before during and after the exam (Monitoring/Proctoring files)
• Any files, pictures taken or uploaded by the data subject, that are not within the scope of Category 1 data, before or after the exam. (Pre-start submissions)

(e) Special categories of data (if applicable):

TestInvite does not want to, nor does it intentionally, collect or process any special categories of data in connection with the provision of the Service.

(f) Processing operations:

TestInvite provides software and/or services designed to support Customer’s preparation and conducting of secure, high-quality online exams globally.

APPENDIX 2: Security Measures

Description of the technical and organisational measures implemented by the data importer in accordance with Clauses 4(d) and 5(c)

Physical Security

TestInvite uses cloud services for its operations. The physical facilities where TestInvite is located requires an RFID chip to gain access.

Information Access

Employees only have access to data contained in business applications on a 'need-to-know' basis. Privileged users are granted on a 'need-to-access' basis.

Endpoint Security

TestInvite uses Sophos for end-point security and protection against viruses and ransomware. All devices are encrypted with a remote swipe enabled should the device be lost or stolen.

Subprocessor Security

Once TestInvite has assessed the risks presented by the Subprocessor, then the Subprocessor is required to enter into appropriate security, confidentiality and privacy contract terms.

ANNEX 1: EU STANDARD CONTRACTUAL CLAUSES (SCC)

Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to processor transfers)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, TestInvite whose legal name is Vanilya Elektronik Hizmetler ve Bilişim Tic. A.Ş. (hereinafter the "data importer") and Customer (hereinafter the "data exporter") each a “party”; together “the parties”, HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1 - Definitions

For the purposes of the Clauses:

• 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
• 'the data exporter' means the controller who transfers the personal data;
• 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
• 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
• 'the Data Protection Law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
• 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2 - Details of the Transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3 - Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4 - Obligations of the data exporter

The data exporter agrees and warrants:

• that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the Data Protection Law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
• that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the Data Protection Law and the Clauses;
• that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
• that after assessment of the requirements of the Data Protection Law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
• that it will ensure compliance with the security measures; that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
• to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
• to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
• that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
• that it will ensure compliance with Clause 4(a) to (i).

Clause 5 - Obligations of the data importer

The data importer agrees and warrants:

• to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
• that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
• that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
• that it will promptly notify the data exporter about:
• any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
• any accidental or unauthorised access, and
• any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
• to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
• at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
• to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
• that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
• that the processing services by the subprocessor will be carried out in accordance with Clause 11;
• to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6 - Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7 - Mediation and jurisdiction

1. 1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject.
1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
2. to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8 - Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the Data Protection Law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the Data Protection Law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9 - Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10 - Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11 - Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12 - Obligation after the termination of personal data processing services

1. the parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Annex 2 - UK Standard contractual clauses (SCC)

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

 Annex 1A: List of Parties: 

 Annex 1B: Description of Transfer: 

 Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: 

 Annex III: List of Sub processors (Modules 2 and 3 only): 

Table 4: Ending this Addendum when the Approved Addendum Changes

Part 2: Mandatory Clauses

Entering into this Addendum

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

Interpretation of this Addendum

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

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

5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

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

8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section ‎10 will prevail.

10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

      a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;

    b. Sections ‎9 to ‎11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and

   c. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

13. Unless the Parties have agreed alternative amendments which meet the requirements of Section ‎12, the provisions of Section ‎15 will apply.

14. No amendments to the Approved EU SCCs other than to meet the requirements of Section ‎12 may be made.

15. The following amendments to the Addendum EU SCCs (for the purpose of Section ‎12) are made:

a. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;b. In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

c. Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

d. Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

e. Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

f. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;

g. References to Regulation (EU) 2018/1725 are removed;

h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;

i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;

j. Clause 13(a) and Part C of Annex I are not used;

k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;

l. In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

m. Clause 17 is replaced with:

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

n. Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

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

Amendments to this Addendum 

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

18. From time to time, the ICO may issue a revised Approved Addendum which:

a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/orb. reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified. 

19. If the ICO issues a revised Approved Addendum under Section ‎18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:

a its direct costs of performing its obligations under the Addendum; and/or

b its risk under the Addendum,

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

20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Alternative Part 2 Mandatory Clauses: