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Effective as of February 8, 2022
This Data Protection Addendum (“Addendum“) forms part of the principal Agreement (“Agreement“) between: (i) Atlas Unlimited Inc. (“Company“); and (ii) Partner (as defined in the Agreement) acting on its own behalf and on behalf of any affiliate of Customer (“Customer“) (each a “Party” and, collectively, the “Parties”). This Addendum shall be effective as of the date of the last signature on the Agreement.
Except as modified below, the terms of the Agreement shall remain in full force and effect. With respect to provisions regarding Processing of Personal Data, in the event of a conflict between this Addendum and the Agreement, or any other agreement between the Parties, the provisions of this Addendum shall control.
This Addendum will only apply to the extent that the Data Protection Laws apply to the Processing of Personal Data.
“Customer Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
“Customer Data” means Personal Data that is Processed by Company on behalf of Customer in Company’s provision of the Services.
“Customer Group Member” means Customer or any Customer Affiliate.
“Data Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, Customer Data transmitted, stored or otherwise Processed.
“Data Subject” shall have the meaning set forth in Section 3.1.1.
“Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country
“EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
“GDPR” means EU General Data Protection Regulation 2016/679;
“Restricted Transfer” means a transfer of Customer Data from any Customer Group Member to Company; or an onward transfer of Customer Data from Company to a Subprocessor, or between two establishments of Company or a Subprocessor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established pursuant to this Addendum.
“Services” means the “Services” provided by Company to Customer as defined in the Agreement.
“Standard Contractual Clauses” means the means the standard contractual clauses attached hereto in Annex 1 issued by the European Commission for the transfer of Personal Data from Data Controllers established in the EU/EEA to Data Processors established outside the EU/EEA.
“Subprocessor” means any third party (excluding any employee or subcontractor of Company) retained by or on behalf of Company to Process Customer Data in connection with the Agreement.
“Technical and Organizational Measures” means security measures implemented by Company appropriate to the type of Personal Data being Processed and the Services being provided by Company to protect Personal Data against unauthorized or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure.
Additionally, as used in this Addendum, the terms “Data Controller“, “Data Processor“, “Data Subject“, “Processing” and “Personal Data” shall have the meanings ascribed to them in the Applicable Data Protection Laws.
2. Applicability of Addendum and Scope of Processing Activities.
2.1 Company’s Services.
For the purposes of Data Protection Laws, Customer is the Data Controller, and Company is the Data Processor, for the provision of the Services specifically provided to Customer, namely for the purpose of administering one or more challenges on Company’s software platform where Data Subjects will track distance travelled for the purpose of raising funds for one or more causes funded by funds from a corporate sponsor as described in full in the Agreement. In such circumstances, Customer agrees to Process Customer Data in accordance with Customer’s obligations as Data Controller under Data Protection Laws, and Section 3 of this Addendum shall apply. However, when Company is acting as a Data Controller of Data Subjects’ Personal Data for Company’s Uses (as defined in Section 2.2 below), Section 3 of this Addendum shall not be applicable.
2.2 Company’s Uses.
2.2.1 In respect of some Processing of Data Subjects’ Personal Data beyond providing the Services to Customer, Company acts as an independent Data Controller under Data Protection Laws. Specifically, Company may collect and Process Personal Data where Data Subjects (a) have engaged with aspects of Company’s software platform beyond those relating specifically to the challenge for which Customer is associated (for example, for Data Subjects’ ongoing access to and use of Company’s software), (b) for Company’s use for the purpose of improving its software, and (c) for Company’s own marketing and promotional purposes (“Company’s Uses”). Customer acknowledges and agrees that Company is the Data Controller for Company’s Uses.
2.2.2 For purposes of Company’s Uses, Company will individually determine the purposes and means of Processing Personal Data to the extent not explicitly prohibited under the Agreement, and will comply with the obligations applicable to it under Data Protection Laws with respect to the Processing of Personal Data.
2.3 Consent and Use of Personal Data by Customer.
2.3.1 Company shall be responsible for obtaining consent from Data Subjects for Processing Personal Data for the core functionality of the Services or for Company’s Uses.
2.3.2 To the extent that Company provides Customer with Customer Data, Customer agrees that it shall only Process such Customer Data for the lawful bases permitted by Article 6(1) of the GDPR. Insofar as Customer relies on consent as a lawful basis under Article 6(1)(a) of the GDPR for Processing, Customer shall only Process Customer Data for the core functionality of the Services, and for Customer’s marketing purposes to the extent permitted by Applicable Data Protection Laws, unless Customer obtains independent consent from Data Subjects to such other Processing.
2.3.3 To the extent that Company provides Customer with Customer Data, Customer will provide a level of protection for such Customer Data that is at least equivalent to that required under Data Protection Laws, and if Customer determines that it cannot do so, it will notify Company in writing and either cease Processing the Customer Data or take reasonable and appropriate steps to remedy such non-compliance.
2.4 Exercise of Data Subjects’ Rights.
In the event that a Data Subject submits a request to either Party (the “Recipient”) exercising any of his, her or its rights under Data Protection Laws (including, without limitation, under Chapter III of the GDPR), the other Party shall take all reasonably necessary measures to assist the Recipient in responding to and complying with such request as required by Data Protection Laws.
3. Data Processing Terms.
3.1.1 Processing of the Customer Data of Data Subjects shall occur as follows:
– Nature, purpose and subject-matter of Processing: to provide the Services.
– Duration of Processing: as long as necessary to provide the Services.
– Type of Personal Data: username, first name, last name, email address, pictures, images, chat messages, comments, activity tracked on Company’s software (e.g. bicycle, running, hiking), dates of activity tracked on Company’s software, distance tracked on Company’s software, entry fees paid to participate in a challenge, total money raised based on use of Company’s software, and other data related to Data Subjects’ interaction with and use of Company’s software.
– Categories of Data Subjects: end-users of Company’s software who participate in the challenge for which Customer is associated, namely individuals who track their physical activity on Company’s software for such challenges.
3.1.2 Company shall Process Customer Data only on documented instructions from Customer, unless required to do so by applicable law; in such a case, Company shall inform Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. For the avoidance of doubt, Customer specifically instructs Company to Process Customer Data as necessary for the purpose of providing the core functionality of the Services, to perform Company’s obligations under the Agreement and as further documented in any other written instructions given by Customer and acknowledged by Company as constituting instructions for purposes of this Addendum. Company shall immediately inform Customer if, in its opinion, an instruction by Customer infringes Data Protection Laws.
3.1.3 Company shall ensure that persons authorized to Process Customer Data on its behalf have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3.2 Technical and Organizational Measures.
3.2.1 Company shall take all measures required pursuant to Article 32 of the GDPR, including, without limitation, implementing appropriate Technical and Organizational Measures to ensure a level of security appropriate to the risk. Such Technical and Organizational Measures shall take into account: (i) the state of the art, (i) the costs of implementation, (iii) the nature, scope, context and purposes of Processing and (iv) the risk of varying likelihood and severity for the rights and freedoms of Data Subjects.
3.2.2 Taking into account the nature of the Processing, Company shall assist Customer by appropriate Technical and Organizational Measures, to the extent possible, for the fulfillment of Customer’s obligation to respond to requests for exercising Data Subjects’ rights laid down in Chapter III of the GDPR.
3.3.1 Customer specifically authorizes and instructs Company to engage the following Subprocessors in connection with the provision of the Services:
– Amazon Web Services, Inc.
– Cloudinary Ltd
– OneSignal, Inc.
– Campaign Monitor Pty Ltd
– Google LLC / Google BigQuery
– Mode Analytics, Inc.
– Functional Software, Inc.
– AppsFlyer Ltd.
– Stripe, Inc.
3.3.2 Customer also generally authorizes Company to engage, from time to time, any other Subprocessors in connection with the provision of the Services, provided that Company shall inform Customer of any intended changes concerning the addition or replacement of any Subprocessors via Company’s website. If Customer objects to Company engaging any additional or replacement Subprocessor, Customer may, within ten (10) days of being informed of such intended change, indicate its objection by contacting Company at email@example.com. Such notice shall state, in sufficient specificity, the reasonable and documented grounds relating to a Subprocessor’s non-compliance with Applicable Data Protection Laws. In the event that Company is unwilling or unable to provide a reasonably acceptable substitute, Customer may terminate the Agreement and its use of the Services as provided in the Agreement. This termination right is Customer’s sole and exclusive remedy if Customer objects to any additional or replacement Subprocessor.
3.3.3 Where Company engages a Subprocessor that will have access to Personal Data, Company shall ensure that the same as or equivalent to data protection obligations set out in this Section 3 shall be imposed on that Subprocessor by way of a contract. Such contract shall provide sufficient guarantees to implement appropriate Technical and Organizational Measures in such a manner that the Processing will meet the requirements of Applicable Data Protection Laws. Where such Subprocessor fails to fulfill its data protection obligations, Company shall remain fully liable to Customer for the performance of the Subprocessor’s obligations.
3.4 Assistance to Customer.
Taking into account the nature of Processing of Personal Data and the information available to Company, Company shall assist Customer in ensuring compliance with the obligations laid out in Articles 32 to 36 of the GDPR. In addition to any other obligation of Company under this Addendum, such assistance shall include notifying Customer, without undue delay, after becoming aware of a Data Security Breach.
3.5 Data Deletion.
3.5.1 Except for that Personal Data with respect to which Company acts as a Data Controller (as more fully set forth in Section 2), and unless prohibited by applicable law, Company shall, at the choice of Customer: (i) delete or return all Customer Data to Customer after such Customer Data is no longer necessary for the provision of the Services, and (ii) delete existing copies of such Customer Data. Company reserves the right to charge Customer a fee (based on Company’s reasonable costs) for the deletion of any Customer Data pursuant to this paragraph. Company will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such data deletion.
3.5.2 In the event that a Data Subject submits a Customer Data deletion request to Company, Customer hereby instructs and authorizes Company to delete or anonymize the Data Subject’s Personal Data on Customer’s behalf.
3.6 Information and Audits.
3.6.1 Company shall make available to Customer all information necessary to demonstrate compliance with its obligations as a Processor laid out in this Section 3 and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer.
3.6.2 Any audit pursuant to Section 3.6.1 shall be permitted only on reasonable advance notice to Company and subject to appropriate confidentiality undertakings (including, without limitation, redacting any information relating to another customer of Company, Company’s internal accounting or financial information, and Company’s trade secrets).
3.6.3 Company may charge a fee (based on Company’s reasonable costs) for any audit under Section 3.6.1. Company will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such audit. Customer will be solely responsible for any fees charged by any third party auditor appointed by Customer to execute any such audit.
3.6.4 Company may object to any third party auditor appointed by Customer to conduct any audit under Section 3.6.1 if the auditor is, in Company’s reasonable opinion, not suitably qualified or independent, a competitor of Company or otherwise manifestly unsuitable. Any such objection by Company will require Customer to appoint another auditor or conduct the audit itself.
3.7 Data Transfers.
3.7.1 Subject to section 3.7.3, each Customer Group Member (as “data exporter”) and Company (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Customer Group Member to that Contracted Processor.
3.7.2 The Standard Contractual Clauses shall come into effect under section 3.7.1 on the later of: the data exporter becoming a party to them; the data importer becoming a party to them; and commencement of the relevant Restricted Transfer.
3.7.3 Section 3.7.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
To the extent permitted under applicable law, and notwithstanding anything else in the Agreement, the total liability of either Party towards the other Party under or in connection with this Addendum shall not exceed the aggregate sum of all amounts paid by Customer to Company in the twelve (12) months immediately prior to the action or event forming the basis for such claim.
5.1 Company may modify the terms of this Addendum if, as reasonably determined by Company, such modification is (i) reasonably necessary to comply with Applicable Data Protection Laws or any other law, regulation, court order or guidance issued by a governmental regulator or agency; and (ii) does not: (a) result in a degradation of the overall security of the Services, (b) expand the scope of, or remove any restrictions on, Company’s processing of Customer Data, and (c) otherwise have a material adverse impact on Customer’s rights under this Addendum.
5.2 Any other modification to this Addendum shall require the signed written consent of both Parties.
5.3 In the event of any modification pursuant to Section 5.1, Company shall notify Customer of such modification by email at least 30 days (or such shorter period as may be required to comply with Applicable Data Protection Laws or any other law, regulation, court order or guidance issued by a governmental regulator or agency) before the change will take effect.
Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: STANDARD CONTRACTUAL CLAUSES
EU Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679
(Module 2 – EU Controller to Non-EU Processor transfers)
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 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.
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) SPECIFIC PRIOR AUTHORISATION. The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date
(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 PUBLIC AUTHORITIES
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 authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
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.
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 governing law as set out in the applicable Client Agreement between the Parties unless otherwise specified.
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 Member State specified in the Client Agreement between the Parties.
(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.
A. LIST OF PARTIES
Name: Entity identified as “Customer” in the Addendum and Agreement
Address: See the Agreement
Contact person’s name, position and contact details: See the Agreement
Activities relevant to the data transferred under these Clauses: The activities are described in Section 3.1.1 of the Addendum.
Signature and date: See the Agreement
Role (controller/processor): Controller.
Name: Atlas Unilimited Inc.
Address: 77 Van Ness Ave., Ste 101 – 1117, San Francisco, CA 94102
Contact person’s name, position and contact details: Olivier Kaeser, COO – firstname.lastname@example.org
Activities relevant to the data transferred under these Clauses: The activities are described in Section 3.1.1 of the Addendum.
Role (controller/processor): Processor.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
End-users of Company’s software who participate in the challenge for which Customer is associated, namely individuals who track their physical activity on Company’s software for such challenges.
Categories of personal data transferred
Username, first name, last name, email address, pictures, images, chat messages, comments, activity tracked on Company’s software (e.g. bicycle, running, hiking), dates of activity tracked on Company’s software, distance tracked on Company’s software, entry fees paid to participate in a challenge, total money raised based on use of Company’s software, and other data related to Data Subjects’ interaction with and use of Company’s software.
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.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
For the duration of the Services pursuant to the Agreement.
Nature of the processing
To provide the Services pursuant to the Agreement.
Purpose(s) of the data transfer and further processing
To provide the Services pursuant to the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
As long as necessary to provide the Services pursuant to the Agreement.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
To provide the Services pursuant to the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The Supervisory Authority where the Data Exporter is located.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Services provided/to be provided to partner in detail
atlasGO is an activity and fitness tracking solution that allows companies to run virtual employee engagement campaigns supporting impactful nonprofit organizations. Due to the COVID-19 outbreak, we are facing a new reality of social distancing and working from home for the foreseeable future. Our partners taking immediate measures to keep their workforce connected, informed, engaged and positive by running an atlasGO Challenge to together support an impactful cause. The campaign will be conducted in a way that promotes responsible exercising.
Key Services Provided:
a) We set-up and maintain the Partner challenge web-based registration page and the challenge on the mobile application
b) We manage and address technical issues that may arise during the Challenge and do direct user support
c) We develop and publish content in collaboration with Partner
d) We provide information and analytics to Partner on the key performance indicators and progress of the Challenge
Registration for the Challenge happens on a website. The activities can be tracked on a mobile application. The mobile application is available for both, iOS and Android devices. atlasGO is a standalone application, there is no connection to any Partner system. Participants decide to participate in the campaign on an individual basis by making a donation and by providing their name, an email address and a username.
Support & Point of Escalation:
The Challenge signup-page and dashboard explains the signup process in detail and features frequently asked questions. User support is provided by atlasGO, emails with questions regarding the application can be sent to email@example.com.
– Access rights are only given to atlasGO employees who need that access to fulfill their tasks. In compliance with our Data Classification and Security Policy, we are using LastPass to manage access rights to systems and data.
– Segregation of duties between individuals responsible for approving, granting and reviewing access logs is ensured. COO / Data Protection Officer in coordination with CTO are responsible to manage access rights.
– Only the CTO has administrative access to audit logs.
– Authentication mechanisms such as multi-factor authentication are implemented to authenticate users remotely connecting to IT systems. All IT infrastructure is secured with MFA. We use virtual 2FA devices.
– We use firewalls on all network devices used to handle Partner data. Additionally, all publicly accessible API endpoints sit behind an AWS load balancer which acts as a secondary firewall.
– Information systems use dynamic passwords or digital certificate authentication services to validate credentials. All of our server infrastructures authenticate through public/key cryptography. Only 2 atlasGO employees have access to these certificates
– A documented, approved and communicated policy to classify data and/or objects containing data that includes data definitions, access restrictions and controls specific to our service is in place. Classification is part of the data classification and security policy and is shared with all new atlasGO employees and current atlasGO employees.
– We have documented, approved and communicated procedures governing the usage, storage or transmission of information and assets used to access information reflected in our application management and security and data classification and security policies.
Business Continuity Management
– We use load-balanced servers to prevent any single point of failure in our environment.
– We have a documented, approved and communicated Business Continuity Plan (BCP) in place.
– We have an incident and crisis management plan in place.
– We have a documented, approved and communicated Disaster Recovery Plan (DRP) that prioritizes the recovery of critical systems and infrastructure in place.
– We have identified AWS and Cloudinary as critical third party service providers. Their SLAs are reviewed to make sure their RPO and RTO is within our acceptable tolerances.
– Operational Security with regards to the development and maintenance of our solution is covered in our Application Management and Security Policy.
– We have a clear segregation of duties between those responsible for requesting, approving, implementing and reviewing production changes. Our CTO is the sole approver and master reviewer of all production changes as reflected in our Application Management and Security Policy.
– Data loss prevention (DLP) or extrusion prevention mechanisms are implemented on all systems supporting the delivery of services to partner in order to prevent data leakage. Encryption is enforced at all relevant network communications. Additionally, internal network communication channels are secured on a private encrypted network.
– Hardening is approved and communicated by CTO and we have an informal review and approval process in place.
– All security patches are applied by both automated system checks and weekly periodic review of security bulletins as a safe-guard against our automated alerts and checks not finding vulnerabilities.
– We have process and user isolation along with ACL policies in place to detect and prevent attacks that target virtual infrastructure.
– We have a documented, approved and communicated data backup and restoration processes outlined in our Disaster Recovery Policy. We only have identified one critical data store (AWS) that is backed up every four hours.
We use NIST national time servers to ensure that all network devices that support time synchronization are maintained via network time protocol (NTP) and configured to retrieve time from an authoritative and trusted time source.
– All data accessed on atlasGO’s servers are through firewalls with strict policies. Our database is stored on the same server as the application, all data is encrypted with either industry-standard TLS or 2048 BIT RSA keys. For passwords, we salt and use SHA256 hash function before storing the passwords.
– All of the third-party providers we pick are holding themselves to the highest industry security standards and data protection agreements are signed with our sub-service vendors.
– Our Information Security Policies and Standards include a section on Cloud Computing. During our testing procedures, we do extensive reviews by multiple parties about potential API security vulnerabilities that could be introduced. We use AWS logging facilities for audit logs that is separate from our other critical infrastructure and only the CTO has access to modify any of the logs on AWS. 2FA is required for anyone who has access to critical Cloud Computing infrastructure.
– Privacy and related processes and policies are a responsibility of our management (COO/CTO).
– Dedicated person(s) responsible for privacy compliance are appointed (COO/CTO)
– All atlasGO employees and contractors sign a Confidentially Agreement before joining atlasGO and before access is given to any data.
– Initial training of employees and on the job training for employees is ensured. For sub-vendors, we review and sign Data Protection Agreements.
Enforcement policy or procedure for those who violate privacy confidentiality and privacy requirements is in place.
– Documented, approved and communicated process for reporting and responding to privacy complaints, privacy incidents, unauthorized disclosure, unauthorized access or data breaches is in place
– Documented, approved and communicated process for responding to individual requests regarding personal data, such as amending, erasing or limiting access
– We limit collecting and disclosing of date as much as possible and always have a clear purpose for data being collected.
– We only collect the minim amount of data necessary to provide our service in a meaningful way.
– COO and CTO have worked with outside legal counseling (SPZ Legal) to implement policies and processes according to GDPR guidelines. Management and team have been informed and update in team meetings when covering security and privacy on a regular basis. Data Protection Officer appointed as per Organizational Chart
Information Security Incident Management
– Documented, approved and communicated information security incident management program is in place
– Documented, approved and communicated escalation process for notifying a client when an incident may impact the security of their data or systems is in place.
– We use AWS load balancers to help mitigate DDoS attacks
System Acquisition, Development, and Maintenance
– Our development/QA process address common application vulnerabilities as defined by OWASP.
– Injection – Using mature API interface libraries with built in safeguards to prevent database injection
– Broken authentication and session – Session credentials are protected by TLS and XSS attacks do not apply because this is an iOS and Android application. Additionally, session credentials are a securely generated un-guessable pseudo-random string.
– Sensitive Data Exposure – All endpoints return the least amount of user data necessary for providing the endpoint’s service. Endpoints that give up sensitive data like the user’s email require the user’s own session key to retrieve.
– XML External Entities – XML is not an accepted type of request and it’s not an accepted response type by the server or application.
– Broken Access Control – Our endpoints use the session key itself for a lookup against the user. Attacking a sensitive endpoint, such as the profile information, which contains email, would require retrieving the secret session key, which is never sent on any endpoints and never revealed because all traffic is secured by TLS.
– Security Misconfiguration – We use a recent version of FreeBSD that is configured to best industry practices including things like process isolation.
We also have an hourly audit that checks the system, system packages, node packages and ruby packages for known vulnerabilities.
– XSS – As we are an iOS and Android app at this time, and as we have no deep-links relating to credentials, XSS is not applicable
– Insecure deserialization – We use the standard deserialization libraries for node and ruby and assume all deserialized strings are potentially malicious.
We also have an hourly audit that checks the system, system packages, node packages and ruby packages for known vulnerabilities.
– Using components with known vulnerabilities – We have an hourly audit that checks the system, system packages, node packages and ruby packages for known vulnerabilities.
– Insufficient Logging and Monitoring – We check our server logs on a weekly basis to ensure attackers have not gained access to our servers either through our API and privilege escalation or through SSH
– All changes go through a rigorous testing process by multiple parties. All possible affected stakeholders are also notified before deployment. Code changes are reviewed or scanned to identify potential vulnerabilities prior to deployment.
– Developer access to production environments is restricted. Only two privileged engineers have access to the production environment which is secured through public key authentication and MFA.
– Development, testing and production environments are segregated. We have a development environment that doubles as testing. The production environment is isolated from both development and testing. Production data is not allowed to be used in testing and development environments.
– We restrict access to source code libraries, version control tools and testing environments to appropriately authorized IT personnel. All versioning control is secured behind 2FA.
– We have automated internal tools that catch and patch potential security issues before they are deployed. Our CTO conducts regular trainings with all developers with respect to secure development practices.
ANNEX III – LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
See section 3.3.1 of the Addendum.