This DPA is incorporated into and forms part of the Aptible Terms of Service or such other written or electronic agreement between Aptible and Customer for the use of services to be provided by Aptible (the “Agreement”) and only applies to the extent that (a) Personal Data you submit to Aptible is subject to Applicable Data Protection Law, and (b) Aptible is considered a processor of such Personal Data. In the event of a conflict between the terms of the Agreement and this DPA, the terms of the DPA will apply.
Aptible provides services to Customer under the Agreement. Pursuant to the Agreement, Aptible may process certain Personal Data relating to Customer (defined below) for which Customer may be a “Data Controller” or a “Data Processor” as defined by Applicable Data Protection Law (defined below), including the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”).
Aptible and Customer will rely on the Standard Contractual Clauses to, if needed, effectuate transfers of Personal Data from the EU to the U.S. pursuant to the Agreement.
The Parties have agreed to execute this DPA to ensure that any Processing of Personal Data performed pursuant to the Agreement is done consistent with Applicable Data Protection Law.
Definitions. All capitalized words not defined below will have the meaning set forth in the Agreement.
1.1. “Applicable Data Protection Law” means privacy and data protection laws, regulations, and decisions by a supervisory authority or other applicable governmental entity applicable to Customer or Aptible, respectively (including without limitation, the GDPR).
1.2. “DPA Effective Date” means (i) the Effective Date of the Agreement, if this DPA is executed concurrently with the Agreement, or (ii) the date on which Aptible receives a fully completed and executed copy of this DPA, if this DPA is executed independently of the Agreement.
1.3. “Personal Data” means all data which is defined as “personal data” in the GDPR, and which is provided by the Customer to Aptible and is accessed, stored, or otherwise Processed by Aptible pursuant to the Agreement.
1.4. “Processing,” “Data Controller,” “Data Subject,” “Supervisory Authority,” and “Data Processor” have the same meaning set forth in the GDPR.
1.5. “Standard Contractual Clauses” means the Annex to the Commission Implementing Decision of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679, and attached hereto as Exhibit A. For transfers of Personal Data that is subject to UK GDPR, the Standard Contractual Clauses also include the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses attached to this DPA as Exhibit 2.
1.6. “Security Practices Summary” means summary documentation of Aptible’s information security management program and related practices (including without limitation third-party security attestations and certifications, as applicable), currently accessible at https://www.aptible.com/legal/security.
1.7. “Subprocessor” means third-party sub-contractors Aptible may retain from time to time that provide services to Aptible necessary for Aptible to perform its obligations under the Agreement.
Applicability. This DPA applies (i) when Personal Data of data subjects located in the United Kingdom (“UK”), European Economic Area (“EEA”) or Switzerland is processed by Aptible on behalf of Customer and Aptible’s processing is related to the offering of goods or services, to such data subjects, or (ii) where Customer is established in the UK, EEA or Switzerland. Depending on Customer’s circumstances, Customer may be a Data Controller or a Data Processor as defined by Applicable Data Protection Law, but as between the parties Aptible will at all times act only as Customer’s Data Processor, as defined by Applicable Data Protection Law. To the extent Aptible is subject to the California Consumer Privacy Act (CCPA), the parties agree that with respect to processing Personal Data in the provision of the Services by Aptible, Aptible is considered a service provider for Customer, which shall be considered a business.
Processing of Personal Data. With respect to the processing of Personal Data, Aptible will:
3.1. Process Personal Data only in accordance with Applicable Data Protection Law;
3.2. Act only upon instructions from Customer, as set forth in the Agreement, including Customer’s instructions to correct, amend, delete, or stop processing Personal Data; the parties agree that the Agreement and this DPA are Customer’s complete and final instructions to Aptible regarding the processing of Personal Data;
3.3. Take reasonable and appropriate steps to ensure that Personal Data in its possession is reliable for its intended use, accurate, complete, and current;
3.4. Disclose Personal Data only to those of Aptible’s personnel who have a “need-to-know” in order to fulfill Aptible’s obligations under the Agreement and who are subject to written confidentiality agreements that obligate them to use and protect such Personal Data as required under the Agreement and this DPA, and for no other purpose;
3.5. Promptly notify Customer upon Aptible’s or its Subprocessors’ receipt of any request, dispute or claim directly from a Data Subject (including, without limitation, requests related to the exercise of that Data Subject’s rights under Applicable Data Protection Law with respect to Personal Data), and to refrain from responding to such request, dispute, or claim unless and until Customer provides written consent to such response to Aptible; Aptible will cooperate as reasonably requested by Customer to enable Customer to respond to such Data Subject access requests – Aptible will provide self-serve APIs to Customer to self-serve this access in most cases;
3.6. Notify Customer without undue delay (and in no case later than the statutory maximum for notification under Applicable Data Protection Law) if Aptible or its Subprocessors reasonably suspects or has reason to know of any accidental or unlawful destruction or accidental loss, alternation, or unauthorized disclosure or access of Personal Data transmitted, stored or otherwise processed (a “Data Breach”) or of any processing of Personal Data in a manner inconsistent with the terms of the Agreement and this DPA, and to provide reasonable assistance to Customer with respect to any Data Breach (including without limitation cooperating with Customer with respect to notification of Supervisory Authorities and communicating to Data Subjects regarding a Data Breach).
3.7. Provide reasonable assistance to Customer where processing performed by Aptible is relevant to a data protection impact assessment being conducted by Customer or Customer’s prior consultation with a Supervisory Authority;
3.8. Promptly notify Customer upon Aptible’s or its Subprocessors’ receipt of any request for disclosure of Personal Data from a Supervisory Authority, government entity, or court of law of a competent jurisdiction, or pursuant to a subpoena (unless otherwise prohibited by law);
3.9. Promptly notify Customer upon Aptible’s or its Subprocessors’ determination that it can no longer meet its obligation to provide the level of protection to Personal Data required under the Agreement and this DPA; and
3.10. Upon notice by Customer, where Customer has determined Aptible is no longer processing data in accordance with the Agreement and this DPA, take reasonable and appropriate steps to stop and remediate such unauthorized processing;
3.11. Cease processing Personal Data upon termination or expiry of this DPA; Aptible shall securely delete Personal Data and shall issue Customer a signed certificate of destruction with thirty (30) days of Customer’s written request to firstname.lastname@example.org; Customer may back up or export Personal Data prior to account closure using Aptible’s self-serve tools.
Security and Audit.
4.1. Aptible will maintain appropriate risk-based technical and organizational measures for the protection of Personal Data that comply with GDPR Article 32, and will at all times be at least as protective of Personal Data as described in the Security Practices Summary. Aptible reserves the right to update its Security Practices Summary from time to time in its sole discretion; provided, however, that Aptible may not materially degrade such technical and organizational measures during the term of the Agreement.
4.2. Upon written request by Customer, and subject to Customer’s execution of Aptible’s standard non-disclosure agreement, Aptible will make available to Customer (or Customer’s independent, third-party auditor) information necessary to demonstrate Aptible’s compliance with its obligations set forth in this DPA and allow for and contribute to audits, including inspections, conducted by Customer or Customer’s independent, third-party auditor. In advance of any such audit or inspection, the parties will mutually agree as to the scope, timing, and duration of the audit or inspection, which shall be carried out at Customer’s expense (unless prohibited by Applicable Data Protection Law). Aptible agrees to promptly remedy any non-compliance with the Agreement, this DPA, or Applicable Data Protection Law discovered by any such audit.
5.1. Aptible will only transfer Personal Data onward to Subprocessors where (a) necessary for Aptible to fulfill its obligations to Customer pursuant to the Agreement, and (b) Aptible has entered into a written agreement with such Subprocessor containing confidentiality and data protection obligations at least as protective of Personal Data as those in this DPA.
5.2. Customer acknowledges and agrees that Aptible may retain Subprocessors for the purposes of providing services under the Agreement, and hereby provides general authorization to the use of Subprocessors as described herein.
5.3. Aptible hereby provides notice to Customer of its Subprocessors via the link accessible at https://www.aptible.com/legal/subprocessor-directory. Any update that Aptible makes to its list of Subprocessors at https://www.aptible.com/legal/subprocessor-directory will constitute notice to Customer of Aptible’s intended changes concerning the addition or replacement of its Subprocessors.
5.4. Customer may object to Aptible’s use of a new Subprocessor by notifying Aptible in writing via email@example.com.
5.5. Aptible agrees to be liable for the acts and omissions of its Subprocessors to the same extent as Aptible would be if performing the services of its Subprocessors under the terms of the Agreement.
6.1. If Customer is utilizing an Aptible product that enables Aptible to host Customer applications and databases, , Customer may specify the Amazon Web Services region for Deploy dedicated stacks, including Dublin, Frankfurt, or London. Aptible will not transfer Personal Data outside Customer’s selected region, except (a) as necessary to provide the services, including to provide Customer support in connection with the services, (b) upon Customer request, as mutually agreed upon by Aptible, and (c) as necessary to comply with the law or a valid and binding order of a law enforcement agency, such as a subpoena or court order.
6.2. With respect to any transfers of Personal Data from the European Union, the EEA, Switzerland, or the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Applicable Data Protection Law (including, to the extent applicable, the United States), and to the extent the Standard Contractual Clauses, either directly or via onward transfer, are recognized under Applicable Data Protection Law as a valid means by which to effectuate such transfers, the parties agree the Standard Contractual Clauses attached hereto shall govern. The Standard Contractual Clauses will not apply to Personal Data that is not transferred, either directly or via onward transfer, from the European Union, the EEA, Switzerland, or the United Kingdom, as applicable. Notwithstanding the foregoing, the Standard Contractual Clauses will not apply if Aptible has adopted Binding Corporate Rules (as defined in the Applicable Data Protection Law) or an alternative recognized compliance standard for the lawful transfer of Personal Data outside the European Union, the EEA, Switzerland, or the United Kingdom. In the event that the Standard Contractual Clauses are determined by competent authority to be invalid under Applicable Data Protection Law, Aptible shall, as soon as possible, adopt an appropriate alternative transfer mechanism.
6.3. To the extent the terms of the Standard Contractual Clauses attached hereto are inconsistent with the terms of this DPA, the terms of the Standard Contractual Clauses shall govern.
Term and Expiration.
7.1. This DPA shall remain in full force and effect until the earlier of: (a) the expiration or termination of the Agreement and/or applicable Order Forms; or (b) the mutual agreement of the parties to terminate this DPA.
7.2. This DPA shall reflect the entire agreement and understanding between the parties with respect to data processing addenda, and shall supersede any prior data processing addendum executed by the parties in connection with the Agreement. For clarity, while in the event of a conflict between the terms of the Agreement and the terms of this DPA, the terms of this DPA will apply, this DPA does not replace or supersede the terms of the Agreement, which remains in full force and effect to the extent described by its terms.
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 - Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(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.
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.
8.3 Transparency On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(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
MODULE TWO: Transfer controller to processor
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. Such list is accessible at: https://www.aptible.com/legal/subprocessor-directory. 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 ten (10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The Parties agree that the data importer shall provide the data exporter with written notice of any such intended changes to its list of sub- processors by posting an amended list of sub- processors at https://www.aptible.com/legal/subprocessor-directory. The data importer’s engagement of any additional or different sub- processors included on its amended list of sub- processors shall not occur until at least ten (10) days after the data importer has posted the amended list at https://www.aptible.com/legal/subprocessor-directory. The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.8 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
MODULE TWO: Transfer controller to processor
(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. Clause 11 Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
MODULE TWO: Transfer controller to processor
(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.
MODULE TWO: Transfer controller to processor
(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.
MODULE TWO: Transfer controller to processor
(a) The supervisory authority, 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.
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
(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
MODULE TWO: Transfer controller to processor
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.
The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
MODULE TWO: Transfer controller to processor
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland (without reference to conflicts of law principles).
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
(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.
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
Data Exporter is the company identified in the associated Agreement and associated Order Form.
Role (controller/processor): Controller
Activities relevant to the data transferred under these Clauses:
Data importer may process personal data transferred under these Clauses to perform services for the data exporter pursuant to the Agreement.Signature and date: According to Agreement.
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
Categories of data subjects whose personal data is transferred Data exporter’s customers and end-users.
Categories of personal data transferred The personal data relating to data exporter’s authorized end-users; data exporter’s employees, agents, freelancers, contractors, advisors, or other agents; and data exporter’s business partners or vendors.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures. N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
As determined by the data exporter, in its discretion.
Nature of the processing
Data importer shall only process personal data as necessary to fulfil its obligations pursuant to its agreement with the data exporter, including the performance of any services and support thereunder, or as further instructed by the data exporter.
Purpose(s) of the data transfer and further processing
To allow data importer to fulfill its obligations pursuant to its agreement with the data exporter.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
For the duration of the agreement between data importer and data exporter, or longer if required by applicable law.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
For list of subprocessors and subject matter of processing, please refer to: https://www.aptible.com/legal/subprocessor-directory. Duration of subprocessors’ processing is for the duration of the agreement between data importer and data exporter, or longer if required by applicable law.
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as competent supervisory authority is either (i) where the data exporter is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority; (ii) where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority; or (iii) where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located shall act as competent supervisory authority.
MODULE TWO: Transfer controller to processor
The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The technical and organizational security measures implemented by the data importer are as described in the Aptible Security Practices Summary available online at https://www.aptible.com/legal/security/
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.
Aptible only enters into service agreements with vendors that meet the following minimum security requirements: (i) they design and implement controls to protect our information at a level equal to or greater than we would apply to our own data; (ii) they design and implement controls to mitigate and contain data security risks through proper separation of duties, role-based access, and least-privilege access for all personnel within their supply chain; (iii) they ensure that applicable information-security controls are integrated in all service support processes applicable to their contractual relationship with us (customer support, etc.); (iv) they inspect, account for, and correct data-quality errors and associated risks, as applicable; (v) they make security incident information available to us; (vi) they ensure that their personnel supporting our information or information systems have the required skills to perform their assigned responsibilities; and (vii) they comply with all service-level agreements (SLAs).
MODULE TWO: Transfer controller to processor
This Annex must be completed for Modules Two and Three, in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).
The controller has authorised the use of the following sub-processors: The sub-processors listed at https://www.aptible.com/legal/subprocessor-directory as updated from time to time.
Exhibit B: UK Addendum to the EU Standard Contractual Clauses
Entering into this Addendum
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.
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
Addendum This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCs
The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.
As set out in Table 3.
The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 28 January 2022, as it is revised under Section 18.
Approved EU SCCs
The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
The Information Commissioner.
A transfer which is covered by Chapter V of the UK GDPR.
UK The United Kingdom of Great Britain and Northern Ireland.
UK Data Protection Laws
All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPR As defined in section 3 of the Data Protection Act 2018.
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.
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.
If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
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.
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.
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.
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.
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
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.
Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
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
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.
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.
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/or
b. 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.
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.