Last Modified: Wednesday, March 17, 2022
This Adventive Data Processing Agreement and its Annexes (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by us on behalf of you in connection with the Master Services Agreement between you and us (also referred to in this DPA as the “Agreement”).
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, an Order Form, or an executed amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
We update these terms from time to time. Adventive will notify you when we do via email (if you have subscribed to receive email notifications from us.
The term of this DPA will follow the term of the Agreement. Capitalized terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.
- CUSTOMER RESPONSIBILITIES
- ADVENTIVE OBLIGATIONS
- DATA SUBJECT REQUESTS
- DATA TRANSFERS
- ADDITIONAL PROVISIONS FOR EUROPEAN DATA
- ADDITIONAL PROVISIONS FOR CALIFORNIA PERSONAL INFORMATION
- GENERAL PROVISIONS
- PARTIES TO THIS DPA
ANNEX 4 – STANDARD CONTRACTUAL CLAUSES
“California Personal Information” means Personal Data that is subject to the protection of the CCPA.
“CCPA” means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).
“Consumer”, “Business”, “Sell”, and “Service Provider” will have the meanings given them in the CCPA.
“Controller” means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Customer” means the natural or legal person, entering into the Agreement and named in the Order Form.
“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitations European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, repealed, consolidated, or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“Europe” means the European Union, the European Economic Area and/or their member states, Switzerland, and the United Kingdom.
“European Data” means Personal Data and data set out at Annex 1 Section B that is subject to the protection of European Data Protection Laws.
“European Data Protection Laws” means all applicable legislation relating to data protection and privacy including without limitation the (i) General Data Protection Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms part of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance (“Swiss DPA”); in each case, as may be amended, superseded or replaced.
“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Permitted Affiliates” means any of your Affiliates that (i) are permitted to use the Services pursuant to the Agreement but have not signed their own separate agreement with us and are not a “Customer” as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to European Data Protection Laws.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Subscriber Data and is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Laws.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Services. “Personal Data Breach” does not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
“Privacy Shield” means the EU-U.S. and Swiss-U.S. Privacy Shield self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to its Decision on July 12, 2016, and by the Swiss Federal Council on January 11, 2017, respectively; as may be amended, superseded, or replaced.
“Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of July, 12 2016; as amended, superseded or replaced.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, or erasure of Personal Data. The terms “Process”, “Processes”, and “Processed” will be construed accordingly.
“Processor” means a natural or legal person, public authority, agency, or other body which Processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses”, means the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021, in the form set out at Annex 4; as may be amended, superseded, or replaced.
“Sub-Processor” means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of Services under the Agreement. Sub-Processors may include third parties or our Affiliates but will exclude any Adventive employee or consultant.
“Viewer Data”, “Target Audience Data” means that data set out in Annex 1 Section B.
- Compliance with Laws. Within the scope of the Agreement and its use of the Services, you will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.
- In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, legality of Customer Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring you have the right to transfer, or provide access to the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any content created, or managed through the Services, including those relating to obtaining consents (where required) to store and process collected information. You will inform us without undue delay if you are not able to comply with your responsibilities under this ‘Compliance with Laws’ section or applicable Data Protection Laws.
- Controller Instructions. The parties agree that the Agreement (including this DPA), together with your use of the Services in accordance with the Agreement, constitute your complete Instructions to us in relation to the Processing of Personal Data, so as you may provide additional instructions during the subscription term that are consistent with the Agreement, the nature and lawful use of the Services.
- Security. You are responsible for determining whether the data security provided for the Services adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Services, including protecting the security of Personal Data in transit to and from the Service (including to securely backup or encrypt any such Personal Data).
- Compliance with Instructions. We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.
- Conflict of Laws. If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Services until such time as you issue new lawful Instructions with regard to the Processing.
- Security. We will implement and maintain appropriate technical and organizational measures to protect Personal Data Breaches, as described under Annex 2 to this DPA (“Technical and Organizational Security Measures”). Notwithstanding any provision to the contrary, we may modify or update the Technical and Organizational Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Technical and Organizational Security Measures.
- Confidentiality. We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to the appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
- Personal Data Breaches. We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or as reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.
- Deletion or Return of Personal Data. We will delete or return all Customer Data including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Services in accordance with the procedures set out in the Agreement. This term shall apply except where we are required by applicable law to retain some or all the Customer Data, or where we have archived Customer Data on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. You may request the deletion of your Adventive account after expiration or termination of the Services by sending a request to [email protected]. You may also retrieve your Customer Data from your account by sending a request to [email protected].
The Services provide a number of controls that you may use to retrieve, correct or delete Personal Data, which you can use to assist in connection with your obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws (“Data Subject Requests”).
To the extent that you are unable to independently address a Data Subject Request through the Services, then upon your written request to [email protected] we will provide reasonable and timely assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement within the prescribed legal time limits as notified by you in accordance with any request.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly notify and inform you and will advise the Data Subject to submit their requests directly to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.
- You acknowledge that we may engage Sub-Processors to Process Personal Data on your behalf for the specific purposes of providing the Services.
- You acknowledge that we have currently appointed, as Sub-Processors, the Adventive Affiliates and third parties listed in Annex 3 to this DPA. We will add the names of new or replacement Sub-Processors to the list at least thirty (30) days prior to the date on which those Sub-Processors commence processing. Further, Adventive will notify you via the email addressed assigned to your Adventive account upon any new or replacement Sub-Processors, so long as you maintain your subscription to the Services, and authorization of email communications from Adventive.
- Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processors that cause us to breach any of its obligations under this DPA.
You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Services in accordance with the Agreement, and in particular that Personal Data may be transferred to and Processed by Adventive, Inc. in the United States and to other jurisdictions where Adventive affiliates and Sub-Processors have operations. Wherever Personal Data is transferred outside its country of origin, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws.
- Scope. The ‘Additional Provisions for European Data’ section shall apply only with respect to European Data.
- Roles of the Parties. When Processing European Data in accordance with your Instructions, the parties acknowledge and agree that you are the Controller of European Data and we are the Processor.
- Instructions. If we believe that your Instruction infringes European Data Protection Laws (where applicable), we will inform you without delay.
- Objection to New Sub-Processors. We will give you the opportunity to object to the engagement of new Sub-Processors on reasonable grounds relating to the protection of Personal Data within 30 days of notifying you in accordance with the ‘Sub-Processors’ section. If you notify us of such an objection, the parties will discuss your concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, we will, at our sole discretion, either not appoint the new Sub-Processor, or permit you to suspend or terminate the Services in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by you prior to suspension or termination). The parties agree that by complying with this sub-section (d), Adventive fulfills its obligations under Section 9 of the Contractual Clauses.
- Sub-Processor Agreements. For the purposes of Clause 9(c) of the Standard Contractual Clauses, you acknowledge that we may be restricted from disclosing Sub-Processor agreements, but we shall use reasonable efforts to require any Sub-Processor we appoint to permit it to disclose the Sub-Processor agreement to you and shall provide (on a confidential basis) all information we reasonably can.
- Data Protection Impact Assessments and Consultation with Supervisory Authorities. To the extent that the required information is reasonably available to us, and you do not otherwise have access to the required information, we will at no aprovide reasonable assistance to you with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws.
- Transfer Mechanisms for Data Transfers.
- Adventive shall not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses and, where appropriate, “supplementary measures” in each case as adopted or approved in accordance with applicable European Data Protection Laws.
- You acknowledge that in connection with the performance of the Services, Adventive, Inc. is a recipient of European Data in the United States. The parties acknowledge and agree to the following:
- Standard Contractual Clauses: The parties agree to abide by and process European Data in compliance with the Standard Contractual Clauses.
- Privacy Shield: In light of the judgment of the Court of Justice of the EU in Case C-311/18, Adventive, Inc. currently does not rely on the EU-U.S. Privacy Shield as a legal basis for transfers of Personal Data, however, will under all circumstances process European Data within the context of the Privacy Shield Principles, unless unable to comply with this requirement.
- The parties agree that for the purposes of the Standard Contractual Clauses, (i) Adventive, Inc. will be deemed the “data importer” and Customer will be the “data exporter” (on behalf of itself and its Permitted Affiliates); (ii) the Annexes of the Standard Contractual Clauses shall be populated with the relevant information set out in Annex 1 and Annex 2 of this DPA; (iii) where the Adventive contracting entity under this Agreement is not Adventive, Inc. such contracting entity (not Adventive, Inc.) will remain fully and solely responsible and liable to you for the performance of the Standard Contractual Clauses by Adventive, Inc., and you will direct any instructions, claims or inquires in relation to the Standard Contractual Clauses to such contracting entity; and (iv) if and to the extent the Standard Contractual Clauses conflict with any provision of this DPA, the Standard Contractual Clauses will prevail to the extent of such conflict.
- To the extent that and for so long as the Standard Contractual Clauses as implemented in accordance with this DPA cannot be relied upon by the parties to lawfully transfer Personal Data in compliance with the UK GDPR, the applicable standard data protection clauses issued, adopted or permitted under the UK GDPR shall be incorporated by reference, and the annexes, appendices or tables of such clauses shall be deemed populated with the relevant information set out in Annex 1 and Annex 2 of this DPA.
- If for any reason Adventive cannot comply with its obligations under the Standard Contractual Clauses or is in breach of any warranties under the Standard Contractual Clauses, and you intend to suspend the transfer of European Data to Adventive or terminate the Standard Contractual Clauses, you agree to provide us with reasonable notice to enable us to cure such non-compliance and reasonably cooperate with us to identify what additional safeguards, if any, may be implemented to remedy such non-compliance. If we have not or cannot cure the non-compliance, you may suspend or terminate the affected part of the Services in accordance with the Agreement without liability to either party (but without prejudice to any fees you have incurred prior to such suspension or termination).
- Demonstration of Compliance. We will make all information reasonably necessary to demonstrate compliance with this DPA available to you and allow for and contribute to audits, including inspections conducted by you or your auditor in order to assess compliance with this DPA. You acknowledge and agree that you will exercise your audit rights under this DPA and Clause 8.9 of the Standard Contractual Clauses by instructing us to comply with the audit measures described in this ‘Demonstration of Compliance’ section. You acknowledge that the Services are hosted by our data center partners who maintain independently validated security programs (including SOC 2 and ISO 27001). At your written request, we will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year unless you have reasonable grounds to suspect non-compliance with the DPA.
- Scope. The ‘Additional Provisions for California Personal Information’ section of the DPA will apply only with respect to California Personal Information.
- Roles of the Parties. When processing California Personal Information in accordance with your Instructions, the parties acknowledge and agree that you are a Business, and we are a Service Provider for purposes of the CCPA.
- Amendments. Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA and the terms that apply in the ‘Amendment; No Waiver’ section of the Agreement will apply.
- Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.
- Limitations of Liability. Each party and each of their Affiliates’ liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the ‘Limitations of Liability’ section under the Agreement and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if Adventive, Inc. is not a party to the Agreement, the ‘Limitations of Liability’ section of the Agreement will apply as between you and Adventive, Inc. and in such respect any reference to ‘Adventive, Inc’, ‘we’, ‘us’, or ‘our’ will include both Adventive, Inc. and the Adventive entity that is party to the agreement. In no event shall either party’s liability be limited with respect to any individual’s data protection rights under this DPA (including the Standard Contractual Clauses) or otherwise.
- Governing Law. This DPA will be governed by and construed in accordance with the ‘Contracting Entity’; ‘Applicable Law; Notice’ sections of the Jurisdiction Specific Terms, unless required otherwise by Data Protection Laws.
- Permitted Affiliates. By signing the Agreement, you enter into this DPA (including, where applicable, the Standard Contractual Clauses) on behalf of yourself and in the name and on behalf of your Permitted Affiliates. For purposes of this DPA only, and except where otherwise indicated, the terms “Customer”, “Subscriber”, “you” and “your” will include you and such Permitted Affiliates.
- Authorization. The legal entity agreeing to this DPA as Customer represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.
- Remedies. The parties agree that (i) solely the Customer entity that is the contracting party to the Agreement will exercise any right to seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer entity that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all Instructions, authorizations, and communications with us under the DPA and will be entitled to make and receive any communications related to this DPA on behalf of its Permitted Affiliates.
- Other rights. The parties agree that you will, when reviewing our compliance with this DPA pursuant to the ‘Demonstration of Compliance’ section, take all reasonable measures to limit any impact on us and our Affiliates by combining several audit requests carried out on behalf of the Customer entity that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.
DETAILS OF DATA PROCESSING
This Annex 1 is incorporated into the Agreement, and forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer).
As stated in the Order Form
As stated in the Order Form
As stated in the Order Form and/or as set out in the Customer’s Adventive Account
Use of Services pursuant to the Master Services Agreement
SIGNATURE AND DATE
This Annex 1 shall be deemed executed upon execution of the DPA
As stated in the Agreement
Processing necessary to provide the Services to Customer, pursuant to the Agreement
SIGNATURE AND DATE
This Annex 1 shall be deemed executed upon execution of the DPA
B. DESCRIPTION OF DATA PROCESSING AND TRANSFER
Categories of data subjects whose Personal Data is transferred
Natural persons that view or interact with advertising created within Adventive in connection with the use of the Services by Customer on (i) any Customer domains, websites, mobile applications, or (ii) distributed by any Customer approved ad network or programmatic ad distribution service (“Viewers or “Target Audience”).
Categories of Personal Data transferred
In relation to Viewers or Target Audience:
Any Personal Data processed in Target Audience Logs. “Target Audience Logs” means any logs of Target Audience interactions with the Customer’s content created with the Services necessary to provide the Services, including IP address (for which relative geolocation is inferred), device type and model, technical browser specifications including vendor, version, viewport dimensions and language) and any data willfully submitted by the Target Audience through the completion and submission of any in advertisement form.
Sensitive Data transferred and applied restrictions or safeguards
The parties do not anticipate the transfer of sensitive data.
The frequency of the transfer
Nature of the processing
Purpose(s) of the data transfer and further processing
Period of Personal Data retention
C. COMPETENT SUPERVISORY AUTHORITY
For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as competent supervisory authority is either (i) where Customer is established in an EU Member State, the supervisory authority responsible for ensuring Customer’s compliance with the GDPR; (ii) where Customer is not established in an EU Member State but falls within the extra-territorial scope of the GDPR and has appointed a representative, the supervisory authority of the EU Member State in which Customer’s representative is established; or (iii) where Customer is not established in an EU Member State but falls within the extra-territorial scope of the GDPR without having to appoint a representative, the supervisory authority of the EU Member State in which the Data Subjects are predominantly located. In relation to Personal Data that is subject to the UK GDPR or Swiss DPA, the competent supervisory authority is the UK Information Commissioner or the Swiss Federal Data Protection and Information Commissioner (as applicable).
This Annex 2 is incorporated into the Agreement, forms part of the DPA and describes Adventive’s Technical and Organizational Security Measures.
INFORMATION SECURITY PROGRAM
Adventive will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to
- help secure Personal Data processed by the Processor against accidental or unlawful loss, access, or disclosure;
- identify reasonably foreseeable and internal risks to security and unauthorized access to Customer Data processed by the Processor; and
- minimize security risks, including through risk assessment and regular testing.
Adventive implements access control mechanisms to insure both Customer access and Adventive employee access is secured.
- Physical and environmental security: Adventive services are hosted with multi-tenant, outsourced cloud infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO27001 compliance, among other certifications, which are maintained and regularly updated here: https://aws.amazon.com/compliance/data-center/controls/.
- Network security: Adventive’s network is monitored and secured using:
- Virtual Private Cloud (VPC) implementations, provisioning logically isolated networks from other tenants,
- Perimeter network firewalls and security groups, designed for low-level inspection of all inbound and outbound transmissions, limiting access to only the necessary protocols and ports required to deliver the Services,
- Web Application Firewalls (WAF), configured to inspect, detect, filter, and block malicious traffic to all HTTP and API endpoints,
- DDoS and bot mitigation proxies implemented in front of Adventive endpoints to further filter malicious bot traffic, mitigate potential DDoS attacks against Adventive’s network at our CDN providers edge, and
- Virtual Private Networks (VPN) configured to allow secure access to Adventive network and systems infrastructure by only authorized and privileged Adventive employees.
- Processing system security: Adventive’s host level access is controlled and secured through:
- Regular patching for security vulnerabilities, and cycling of hosts, to replace production systems with clean, secured imaged versions of the underlying operating systems,
- Implementation of of host-level firewalls to limit access from within the designated VPC,
- Implementation of centralized, external LDAP directory systems for host and user authentication,
- Disablement of all local users, root, and privileged local user accounts.
- System configured to only authenticate users with respect to the requirements outlined in “Limitations of Privilege & Authorization”.
- Regular patching for security vulnerabilities, and cycling of hosts, to replace production systems with clean, secured imaged versions of the underlying operating systems,
- Employee system security: Adventive employees are required to utilize only company supplied equipment when accessing Adventive networks and systems. Adventive’s employee system systems security is controlled and secured through:
- Agent-based authentication software, implemented to override local system account access and authenticate only against Adventive’s central authorization and MDM infrastructure,
- Centralized authentication software, implemented as an agent on all systems, overriding local system account access and authenticating only against adventive’s central authorization and MDM infrastructure.
- Heartbeat based periodic ‘check-in’s’ with Adventive’s central authorization and MDM infrastructure, for purposes of monitoring equipment location and network connectivity, and for purposes of remote wipe.
- Device posterity management for all hardware, including hardware and software two-factor authentication tokens.
- Mandatory VPN connectivity through Adventive’s zero-trust gateway for all communication, for purposes of logging all inbound and outbound access, preventing unauthorized access to sites or services, override of public DNS servers utilizing DNS over HTTPS and prevention of malware.
- Agent-based authentication software, implemented to override local system account access and authenticate only against Adventive’s central authorization and MDM infrastructure,
- Limitation of Privilege & Authorization: Adventive maintains controls for requesting, approving, granting, modifying, and revoking user access to all systems and applications containing Personal Data. Only employees with a demonstrated clear business need shall be granted access to systems containing or processing Personal Data, and only for the duration required to complete their approved business need. Access to system level resources is restricted at the operating system level based on the minimum access level required and granted to the individual user for purposes of conducting their approved business need.
Adventive employee accounts are managed by a centralized LDAP directory system designed to provide individually assigned usernames and password and implement two-factor token-based authentication. Adventive adheres to NIST Special Publication 800-63B of NIST Digital Identity Guidelines minimum password length, originality, complexity, aging, and rotation standards for all employee credentials which are enforced utilizing the centralized LDAP directory system. Additionally, all successful and failed authentications are logged and subject to automatic lockout and disablement as a result to repeated authentication failures. Accounts which have been disabled as a result of automatic lockout require human verification and intervention to restore access.
- Data access controls: Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access; and, that Personal Data cannot be read, copied, modified or deleted without authorization in the course of processing.
MEASURES FOR ENSURING ENCRYPTION OF PERSONAL DATA
Adventive implements encryption to adequately protect Personal Data:
- Data in-transit. Adventive requires the use of HTTPS encryption (also referred to as SSL or TLS) for all browser-based and API connections. Our HTTPS implementation uses current industry standard algorithms with certificates issued from a globally trusted certificate authority. Encryption algorithms and parameterization include at minimum 256-bit key lengths for symmetric encryption, 2048-bit RSA or 256-bit RCC key lengths for asymmetric algorithms. Internal system communication between databases and processing systems is encrypted utilizing SSL/TLS connections between hosts while data is being read or written from the database. Management connectivity is secured within the VPC, accessible only via an authorized VPN connection, by a privileged and authorized Adventive employee is secured utilizing SSH connections.
- Data at-rest. Adventive databases are encrypted utilizing industry standard AES-256 encryption while in use. Additionally, all user passwords are stored utilizing industry standard practices for security including salted, and one-way hashing with the live production databases.
- Data Backups. Backups of databases and storage systems utilized to provide the Services, are taken on a regular basis and are securely encrypted at rest utilizing industry standard AES-256 encryption, during read, transit, write and storage to ensure that Personal Data is secured and protected against accidental destruction or loss.
MEASURES FOR ENSURING AVAILABILITY CONTROL
Adventive implements the following controls to ensure availability of our infrastructure:
- Infrastructure availability: Adventive’s infrastructure providers implement commercially reasonable efforts to ensure at minimum 99.95% uptime, and deploy a minimum of N+1 redundancy for network, power and HVAC infrastructure and services. Adventive is deployed in multiple availability zones to ensure increased availability and redundancy in the event of a single availability zone outage.
- Fault tolerance: Strategies for backup and replication of data and processing infrastructure are designed to ensure redundancy and failover during significant infrastructure outages. Customer data is backed up on regularly to highly durable, redundant storage devices across multiple availability zones and regions.
- Replication and backups: All Adventive data storage systems and databases operate in an redundant, replicated fashion with no less than 1 primary and 1 secondary replica, which span multiple availability zones.
- Load tolerance: Unforeseen increases in process load is handled automatically to distribute load across systems, and increase system capacity when necessary.
LIST OF SUB-PROCESSORS
The following Sub-Processors are utilized by Adventive to provide the Services pursuant to the Agreement:
Amazon Web Services (AWS)
On-demand cloud computing infrastructure
Content Delivery Network (CDN)
DDoS & bot mitigation
Infrastructure & Application Security
Email & Voice Service Provider
Sales & Marketing
Customer Relationship Management
Email Service Provider
Product usage analytics
Sales & Marketing
Electronic Document Signatures
STANDARD CONTRACTUAL CLAUSES
Module Two: Transfer Controller to Processor (C2P)
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.
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.
(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 – Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9 – Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(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.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
(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
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.
(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.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (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.
Use of sub-processors
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(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. 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.
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(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.
(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.
(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
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.
Obligations of the data importer in case of access by public authorities
(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 authorities, 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
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 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.
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 these Clauses shall be governed in accordance with the ‘Contracting Entity; Applicable Law; Notice’ section of the Jurisdiction Specific Terms or if such section does not specify an EU Member State, by the law of the Republic of Ireland (without reference to conflicts of law principles)
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 the jurisdiction specified in Clause 17.
(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.
UK AND SWISS ADDENDUM TO THE STANDARD CONTRACTUAL CLAUSES
(a) This Addendum amends the Standard Contractual Clauses to the extent necessary so they operate for transfers made by the data exporter to the data importer, to the extent that the UK GDPR or Swiss DPA (as defined in the Adventive Data Processing Addendum) apply to the data exporter’s processing when making that transfer.
(b) The Standard Contractual Clauses shall be amended with the following modifications:
(i) references to “Regulation (EU) 2016/679” shall be interpreted as references to the UK GDPR or Swiss DPA (as applicable);
(ii) references to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the UK GDPR or Swiss DPA (as applicable);
(iii) references to Regulation (EU) 2018/1725 shall be removed;
(iv) references to “EU”, “Union” and “Member State” shall be replaced with references to the “UK” or “Switzerland” (as applicable);
(v) Clause 13(a) and Part C of Annex II are not used and the “competent supervisory authority” shall be the United Kingdom Information Commissioner or Swiss Federal Data Protection Information Commissioner (as applicable);
(vi) references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Information Commissioner” and the “courts of England and Wales” or the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland” (as applicable);
(vii) in Clause 17, the Standard Contractual Clauses shall be governed by the laws of England and Wales or Switzerland (as applicable); and
(viii) to the extent the UK GDPR applies to the processing, Clause 18 shall be replaced to state: “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
(ix) to the extent the Swiss DPA applies to the processing, Clause 18 shall be replaced to state: “Any dispute arising from these Clauses shall be resolved by the competent courts of Switzerland. The Parties agree to submit themselves to the jurisdiction of such courts”.