Data Security Addendum
Last revised: 17th Feb 2022
This Addendum provides you with additional information regarding the physical and technical safeguards designed to prevent unauthorized access, use or disclosure of Data involved in Optimon Services as well as address the terms applicable to Optimon processing Personal Data, where such may occur.
In this Addendum, the following words and phrases shall (unless the context otherwise requires) have the meanings set out beside them:
- “Affiliate” shall mean a person or entity controlling, controlled by or under the common control with Optimon or Customer (as applicable); the term “control”, for the purpose of this definition, shall mean direct or indirect possession of the power to direct or cause the direction of the management or policies of Optimon or Customer (as applicable), whether through the ability to exercise voting power, by contract or otherwise.
- “Data Subject” shall mean natural persons to which Personal Data relate.
- “Personal Data” shall mean any Personal Data Processed by Optimon or any Subcontractor pursuant to or in connection with the Optimon Services.
- “Applicable Laws” shall mean European Union or a Member State law and any other applicable law with respect to any Personal Data.
- “Applicable Privacy Laws” shall mean EU Privacy Laws, US Privacy Laws, and, to the extent applicable, the data protection or privacy laws of any other country.
- “Customer” means the entity that entered the Terms together with its Affiliates, which have entered the Terms or a part thereof.
- “Data” means all data and information transmitted to the Services by Customer or processed by Optimon Platform and Applications on Customer’s behalf.
- “EEA” means the European Economic Area.
- “EU Privacy Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each EU member state and as amended, replaced or superseded from time to time, including by the GDPR and laws, rules and guidelines implementing or supplementing the GDPR.
- “GDPR” shall mean 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 and repealing Directive 95/46/EC (General Data Protection Regulation).
- “Restricted Processing” shall mean (1) the transferring of Personal Data outside the EEA or to an International Organization, and (2) any Processing of Personal Data that was transferred to any country outside the EEA or to an International Organization; in each case, where such transferring or Processing of Personal Data would be prohibited by Applicable Privacy Laws in the absence of Standard Contractual Clauses.
- “Sell“, “Sale” or “Selling” of Personal Data, shall mean selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, Personal Data to a third party for monetary or other valuable consideration.
- “Services” shall mean the service provided by Optimon to Customer pursuant to the Terms.
- “Standard Contractual Clauses” shall mean the standard contractual clauses attached as Schedule 13 of this Addendum.
- “Subcontractor” shall mean any person appointed by or on behalf of Optimon to Process Personal Data on behalf of Customer in connection with the Terms, excluding any employee of Optimon or of any such appointed person.
- “US Privacy Laws” shall mean the applicable state, local, and/or federal privacy laws, including but not limited to the California Consumer Protection Act.
- “European Commission“, “Controller“, “Data Subject“, “International Organisation“, “Member State“, “Personal Data“, “Personal Data Breach” and “Processing” shall have the meanings ascribed to them in the GDPR.
- Authorization and Compliance
- By virtue of the Terms, Customer is considered as the “Controller” and Optimon is considered as the “Processor” with regards to the Personal Data.
- Schedule 2 to this Addendum sets out certain details regarding Optimon’s Processing of Personal Data, as required by article 28(3) of the GDPR.
- Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of all Applicable Privacy Laws. Without derogating from the generality of the above, Customer bears the exclusive responsibility for assessing the lawfulness of the Processing of Personal Data, as well as the lawfulness of the transfer of Personal Data to Optimon to Process Personal Data for the provision of the Services.
- Optimon shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions. Customer’s instructions for the Processing of Personal Data shall comply with Applicable Privacy Laws.
- Optimon acknowledges and confirms that it does not receive or Process any Personal Data as consideration for any services or other items that Optimon provides to Customer under the Terms. Optimon commits to refrain from Selling any Personal Data Processed hereunder, without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Data to or from Optimon under the Terms or this Addendum to qualify as Selling of such Personal Data.
- Optimon shall Process Personal Data (i) in accordance with this Addendum and the Terms, which set out the Customer’s instructions to Optimon in relation to the Processing of Personal Data, and/or (ii) on documented instructions from Customer, unless prohibited to do so by Applicable Laws to which Optimon is subject. To the extent that Optimon believes that an instruction given by Customer does not comply with any Applicable Law, it shall refuse to comply with such instruction even if Customer insists on it in spite of the notification of Optimon.
- Optimon’s Personnel
- Optimon shall ensure that access to Personal Data is strictly limited to those individuals who need to know or access the relevant Personal Data and as strictly necessary for the purpose of the Terms.
- Optimon shall take all steps reasonably necessary to ensure that the individuals who may have access to Personal Data on its behalf (i) are informed of the confidential nature of Personal Data; and (ii) are subject to confidentiality undertakings or appropriate statutory obligations of confidentiality.
- Customer acknowledges that (i) Optimon’s Affiliates may be retained as Subcontractors; and (ii) Optimon and Optimon’s Affiliates may engage third-party Subcontractors in connection with the provision of the Services.
- Optimon shall ensure that the arrangement between Optimon and any Subcontractor is regulated by a written agreement or other written instrument governed by EU Member State law, imposing on the Subcontractor undertakings that guarantee at least the same level of protection for Personal Data as those set out in this Addendum.
- Schedule 2 to this Addendum lists Subcontractors that are currently engaged by Optimon to Process Personal Data on behalf of Customer. Such list will be updated from time to time and Optimon shall sent the Customer a notice of any such change. If Customer has a legitimate reason under Applicable Privacy Laws to object to the new Subcontractor’s Processing of Personal Data, Customer may terminate the Terms (limited to the Services for which the new Subcontractor is intended to be used) on written notice to Optimon. Such termination shall take effect at the time determined by the Customer, which shall be no later than thirty (30) days from the date of Optimon’s notice to Customer informing Customer of the new Subcontractor. If Customer does not terminate the Terms within this thirty (30) day period, Customer is deemed to have accepted the new Subcontractor.
- Within the thirty (30) day period from the date of Optimon’s notice to Customer informing Customer of the new Subcontractor, Customer may request that the Parties discuss a resolution of the objection. Such discussions shall not extend the period for termination and do not affect Optimon’s right to use the new Subcontractor after the thirty (30) day period.
- Rights of Data Subject
- Without derogating from the generality of the above, Optimon shall (i) notify Customer without undue delay of any request raised by an Data Subject in relation to Personal Data concerning him or her to Optimon; and (ii) refrain from responding to any such request, except on a written instruction of Customer or as required by Applicable Law to which Optimon is subject.
- Taking into account the nature of the Processing of Personal Data by Optimon, Optimon shall assist Customer by reasonably appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligations to respond to a request raised by an Data Subject in relation to Personal Data concerning him or her.
- Personal Data Breaches
- Optimon will notify Customer of any Personal Data Breach affecting Personal Data without undue delay after becoming aware of the Personal Data Breach, and reasonably assist Customer in relation to any Personal Data Breach notifications Customer is required to make under the GDPR.
- Optimon will take reasonable steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach.
- Data Security
- Optimon has implemented and will apply various the technical and organizational measures set forth in Schedule 1 to protect the security of Data. Customer has reviewed such measures and agreed that as to the Services the measures are appropriate taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Data processing.
- Optimon may change the measures in Schedule 1 at any time without notice so long as it maintains a comparable or better level of security.
- Restricted Processing
- The Parties hereby enter into the Controller-Processor Standard Contractual Clauses. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
- For avoidance of doubt, Article 1 shall not apply in respect of Restricted Processing that are allowed by Applicable Privacy Laws without entering into the Standard Contractual Clauses or an agreement incorporating the Standard Contractual Clauses.
- Data Protection Impact Assessment and Prior Consultation
If, pursuant to Applicable Privacy Laws, Customer is required to perform a data protection impact assessment or prior consultation with, at Customer’s request, Optimon shall provide such documents as are generally available for the Services. Any additional assistance shall be mutually agreed between the Parties.
Each Party is responsible for its compliance with its own documentation requirements, in particular maintaining records of processing activities where required under the Applicable Privacy Laws. Each Party shall reasonably assist the other Party in its documentation requirements.
Upon a written request of Customer at any time, Optimon shall delete all Data in its possession or control, along with all copies, extracts and other objects or items in which it may be contained or embodied; provided, however, that to the extent that Optimon is required by Applicable Law or by the order of a governmental or regulatory body to retain Personal Data, it shall be maintained for as long as such requirement apply. This undertaking shall not apply to any archival copies of data retained by Optimon in the normal course of business.
- Information Rights
Optimon shall make available to Customer any information reasonably necessary to Customer to demonstrate compliance with this Addendum.
- Audit Rights
Optimon will allow for and contribute to audits to demonstrate compliance with this Addendum in accordance with the following provisions:
- Customer shall provide at least six (6) weeks’ prior written notice to Optimon of a request to audit, provided that any such request shall occur no more than once in any twelve (12) calendar month period.
- Upon receipt of the request under Article 1 above, Optimon will inform Customer if Optimon has conducted an audit of its data protection and data security procedures in the preceding twelve (12) calendar month period, in which case Customer agrees to exercise any right it may have to conduct an audit under this Addendum or under the Standard Contractual Clauses (if they apply) by instructing Optimon to provide Customer with a summary of such most recent relevant audit report, which shall be considered Optimon’s confidential information.
- To the extent that the Customer requested an audit under Article 1 and Optimon has not performed an audit pursuant to Article 13.2 during the twelve (12) calendar month period prior to the request, the audit shall be conducted by an independent third party auditor who is engaged and paid by Customer, and is under a non-disclosure agreement requiring the auditor to maintain the confidentiality of all Optimon’s confidential information and all audit findings. All audits shall be conducted during normal business hours, at Optimon’s principal place of business or other location(s) where Personal Data is Processed. Any such audit will result in the generation of an audit report, which shall be considered Optimon’s confidential information. Optimon will make available to Customer a summary of the relevant audit report.
- The scope of any audit will be limited to Optimon’s policies, procedures, systems and controls relevant to the Processing of Personal Data.
- The Customer shall bear the costs associated with such audit, including Optimon’s reasonable expenses.
- If the Standard Contractual Clauses apply, nothing in this Article varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or Data Subject’s rights under the Standard Contractual Clauses.
- This Addendum shall continue to be in force until the termination of the Terms.
- With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the Parties, including the Terms, the provisions of this Addendum shall prevail.
- This Addendum and all non-contractual or other obligations arising out of or in connection with it are governed the laws and subject to the jurisdiction of the courts of Dublin, Ireland.
- If any provision of this Addendum is held by a court of competent jurisdiction to be unenforceable under Applicable Law, then such provision shall be excluded from this Addendum and the remainder of this Addendum shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Addendum shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
STANDARD CONTRACTUAL CLAUSES
Controller to Processor Transfers
Purpose and scope
- 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.
- The Parties:
- 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
- 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”).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- 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.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8.1(b), 8.9(a), (c), (d) and (e);
- Clause 9(a), (c), (d) and (e);
- Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18(a) and (b).
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- 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.
Clause 7 – Optional
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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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:
- 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;
- 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;
- 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
- 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
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- 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.
- 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.
- 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.
- 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
- The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- 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.
- 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.
- 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:
- 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;
- refer the dispute to the competent courts within the meaning of Clause 18.
- 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.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- 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, as indicated in Annex I.C, shall act as competent supervisory authority.
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, as indicated in Annex I.C, shall act as competent supervisory authority.
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, as indicated in Annex I.C, shall act as competent supervisory authority.
- 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
- 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.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- 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;
- 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;
- 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.
- 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.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- 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).
- 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
- 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:
- 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
- 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.
- 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.
- 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.).
- 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.
- 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
- 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).
- 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.
- 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
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- 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).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- 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;
- the data importer is in substantial or persistent breach of these Clauses; or
- 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.
- 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.
- 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 law of the Republic of Ireland.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of the Republic of Ireland.
- 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.
- The Parties agree to submit themselves to the jurisdiction of such courts.
- LIST OF PARTIES
Name: The entity identified as Customer under the Terms.
Address: The address of Customer as provided to Optimon.
Contact person’s name, position and contact details: The contact details associated with Customer at Optimon’s system’s.
Activities relevant to the data transferred under these Clauses: The activities specified in Schedule 2.2 of the Addendum.
Signature and date: By entering into the Terms and the Addendum, and using the Services for Restricted Processing, the data exporter is deemed to have signed these Standard Contractual Clauses and their respective Annexes.
Role (controller/processor): Controller.
Name: Optimon, as identified in the Terms.
Address: The address for Optimon as specified in the Terms.
Contact person’s name, position and contact details: The contact details associated with Optimon, as specified in the Terms.
Activities relevant to the data transferred under these Clauses: The activities specified in Schedule 2.2 of the Addendum.
Signature and date: By entering into the Terms and the Addendum, and engaging in Restricted Processing, the data importer is deemed to have signed these Standard Contractual Clauses and their respective Annexes.
Role (controller/processor): Processor.
- DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred:
Categories of data subjects are specified in Schedule 2.2 of the Addendum.
Categories of personal data transferred
Categories of personal data transferred are specified in Schedule 2.2 of the Addendum.
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 data exporter may not include sensitive personal data in the personal data described in Schedule 2.2 of the Addendum.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Personal Data is transferred on a continuous basis in accordance with the data exporter’s use of the Services and submission of Personal Data thereto.
Nature of the processing
The nature of the processing of personal data is described in Schedule 2.2 of the Addendum.
Purpose(s) of the data transfer and further processing
The purpose(s) of the processing of personal data is described in Schedule 2.2 of the Addendum.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The period for which Personal Data will be retained is for the duration of the Terms, unless agreed otherwise in the Terms and/or the Addendum.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As set forth in Schedule 2.2 of the Addendum.
- COMPETENT SUPERVISORY AUTHORITY
The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
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 measures (including the certifications held by the data importer) as well as the scope and the extent of the assistance required to respond to data subjects’ requests, are described in Schedule 7.1 of the Addendum.
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:
The technical and organisational measures that the data importer will impose on sub-processors are described in the Addendum.
Schedule 2.2 to the Addendum
The data exporter is the entity identified as the Customer in the Terms.
The data importer is My Witty Ltd., operator and owner of Optimon, an optimization platform active in collecting data from ad servers (e.g., Google Ad Manager), Header Bidding, and other SSPs and providing smart insights to optimize and maximize overall ad inventory yield for websites and mobile apps.
Nature and purpose of the data processing
The platform allows insight into the ad revenue performance within Customer’s product and/or digital assets. The purpose of such engagement and analytics is to provide the Customer with insights and alerts, including with respect to ad inventory optimization.
Categories of data subjects
The group of individuals (“data subjects“) affected by the processing of personal data under the Terms may include (a) business profile of Customer users; and (b) limited personal data related to Customer’s users as collected by the Customer
Categories of data
The types of personal data that may be collected, processed and/or used under the Agreement may include the following: (a) with respect to Customer Users – name, email, country/state/location, company, phone number; (b) limited access to anonymized IP location data as provided to Optimon by third parties.
Special categories of data
Nature and subject matter of processing
With respect to Customer’s users Data is collected from third party tools embedded in Customer products such as Google Ad Manager, SSPs and cookies. Data is stored and processed in Google Cloud servers located in the EEA. The processing is done solely for the Customer and the purposes of optimization of customer processes.
Duration of the data processing
Data is stored for as long as the contract / service is active.
Transfer of Agreement Personal data to Subcontractors
- Google Cloud Services (in EEA)
- Open-source libraries (e.g. geojs.io)
- Amazon Cloud Services
Schedule 7.1 to the Addendum
Description of the technical and organizational security measures implemented by Optimon:
- Measures to ensure confidentiality
- Physical access control
- Measures that physically deny unauthorized persons access to IT systems and data processing equipment used to process Personal Data, as well as to confidential files and data storage media.
- Description of physical access control:
- All servers, applications and databases reside within Google Cloud Services as cloud infrastructure providers and in compliance with well-known security standards, including physical access control.
- All physical access points are limited by Google.
- Logical access control
- Measures to prevent unauthorized persons from processing or using Personal Data which is protected by applicable laws.
- Description of logical access control system:
- Access is restricted on application, infrastructure and database layers. Controls include password verification & validation, multi-factor authentication for infrastructure and database, automatic locking, permissions-based access, and multi-factor authentication for login to the platform.
- Data access control
- Measures to ensure that persons authorized to use data processing systems can only access Data according to their access rights, so that cannot be read, copied, changed or removed without authorization during processing, use and storage.
- Description of data access control:
- Cloud providers are unauthorized to mine tenant data for their benefit.
- Database resides in Google Cloud Services, VPN access with no public access.
- Data cannot be read, copied, changed or removed without authorization during processing.
- Multi-factor authorization.
- Separation rule
- Measures to ensure that Data collected for different purposes are processed separately and separated from other data and systems in such a way as to preclude the unplanned use of such data for other purposes.
- Description of separation rule:
- Each tenant / customer account is processed separately.
- Vendor enforces and attests tenant data separation when producing data.
- Description of the separation control process:
- Multi-tenant architecture with unique access authorisation and ID per customer.
- System and network environments are logically separated to ensure separation of production and non-production environments.
- Separation rule
- Data access control
- Logical access control
- Physical access control
- Measures to ensure integrity
- Data integrity
- Measures to ensure that stored Data cannot be corrupted by means of a malfunctioning of the system.
- Description of data integrity:
- Input and output integrity routines (i.e., reconciliation and edit checks) are implemented for application interfaces and databases to prevent manual or systematic processing errors or corruption.
- File integrity (host) and network intrusion detection (IDS) tools implemented to help facilitate timely detection, investigation by root cause analysis and response to incidents.
- Administrators are educated on their legal responsibilities with regard to security and data integrity.
- We conduct tests to verify the integrity of our solution.
- Transmission control
- Measures to ensure that it is possible to verify and establish to which bodies Personal Data may be or have been transmitted or made available using data communication equipment.
- Description of transmission control
- Transmission is done via secure TCP for Database and HTTPS for application layer.
- Transport control
- Measures to ensure that the confidentiality and integrity of Customer Data is protected during transmission of Personal Data and transport of data carriers.
- Description of transport control:
- Data is only transported to Google Cloud and Amazon Cloud.
- Transported data is protected within the service agreement.
- Transport is via HTTPS for integrity and security.
- Input control
- Measures to ensure that it can be subsequently verified and ascertained whether and by whom Data have been entered or modified in data processing systems.
- Description of input control:
- Input and output integrity routines (i.e., reconciliation and edit checks) are implemented for application interfaces and databases to prevent manual or systematic processing errors or corruption.
- Input control
- Transport control
- Transmission control
- Data integrity
- Measures to ensure availability and resilience
- Availability control
Measures to ensure that Data are protected against accidental destruction or loss.
- Sub-processors database runs daily backup.
- Recovery procedures are in place and periodically tested.
- Quick recovery
Measures to ensure the ability to quickly restore the availability of and access to Personal Data and used systems in the event of a physical or technical incident.
- DRP and mechanisms are in place and periodically tested
- Recovery mechanisms include BCP, DRP, and backups for physical and technical incident recovery
Measures to ensure that the functions of the system are available and malfunctions are reported.
- minute precision monitoring and notification allows reporting of malfunctions
- Measures for the regular testing and evaluation of the security of data processing
- Verification process
- Measures to ensure that the data are processed securely and in compliance with data protection regulations.
- Sub-processor conducts network penetration tests of our cloud service infrastructure at least once a year.
- Sub-processor conducts application penetration tests of our cloud service infrastructure at least once a year.
- Verification process
- Encryption measures
Measures or operations in which a clearly legible text/information is converted into an illegible, i.e. not easily interpreted.
- Sub-processors supports unique encryption keys per tenant.
- Communications are encrypted with SSL.
 Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
 The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
 This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
 As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.