Data Processing Addendum

(Last updated January 2022)

This Data Processing Addendum (“DPA”) forms part of the Service Terms located at https://everflow.io/service-terms.html and the Order Form (together, the “Agreement”), entered into by and between the Customer and Everflow Technologies Inc. (“Everflow”), pursuant to which Customer accesses, uses and has accessed and used Everflow's Platform Services (as defined in the Agreement).

Any capitalized terms herein shall have the meaning set forth in the Agreement. This Addendum applies to and takes precedence over the Agreement and any associated contractual document between the parties, such as an order form, statement of work or data protection addendum thereunder, to the extent of any conflict.

Everflow and Customer agree as follows:

1. Definitions and Scope.  

1.1 For purposes of this Addendum:

(a) “CCPA” means the California Consumer Protection Act, Cal. Civ. Code §1798.100 et seq.

(b) “Data Protection Laws” means applicable laws and regulations, including laws and regulations of (i) the General Data Protection Regulation (“GDPR”) ((EU) 2016/679), (ii) California Consumer Privacy Act (“CCPA”), Cal. Civ. Code §1798.100 et seq., (iii) any national or state implementing laws, regulations and secondary legislation, as amended or updated from time to time, and (iv) when the GDPR is no longer directly applicable in the UK, then any successor legislation to the GDPR or the Data Protection Act 1998.

(c) “GDPR” means General Data Protection Regulation (Regulation (EU) 2016/679).

(d) “Personal Data” means both “personal information” under the CCPA, and “personal data” under the GDPR.

(e) “Process” and “Processing” mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

1.2 This Addendum applies to the Personal Data that Everflow receives from Customer, or otherwise Processes for or on behalf of Customer, in connection with the Agreement. For the purposes of this Addendum, Customer is the “data controller” and Everflow is the “data processor”, each as defined in the GDPR (and for the purposes of the CCPA, Everflow is a “service provider” to Customer).

1.3 By way of background, but without limiting the scope of this Addendum, the Agreement involves the following:

(a) Subject matter, nature and purpose of Processing: the provision of advertising services using the Platform Services, as defined in the Agreement.

(b) Anticipated duration of Processing: For the term of the Agreement and thereafter for so long as Personal Data is retained in the Platform Services at Customer’s direction.

(c) Categories of Personal Data typically subject to Processing under the Agreement:  data collected in connection with advertising services.  See Schedule 1 for details.

(d) Typical categories of data subjects (i.e., the individuals to whom the Personal Data relate): individuals to whom advertisements are displayed using the Platform Services.

1.4 The provisions of this Addendum survive the termination or expiration of the Agreement for so long as Everflow or its direct or indirect subcontractors have custody, control or possession of the Personal Data.

2. Compliance with Data Protection Laws

2.1 Both parties shall comply with the Data Protection Laws.  

2.2  Customer’s instructions for the Processing of Personal Data shall comply with the Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer shall ensure that Customer is entitled to transfer the relevant Personal Data to Everflow so that Everflow and its Sub-processors may lawfully Process the Personal Data in accordance with this Addendum and the Agreement on Customer’s behalf.

2.3 (a) Everflow will Process the Personal Data only on behalf of and in accordance with documented instructions from Customer, including with regard to transfers of Personal Data, unless otherwise required under the Data Protection Laws. In such case, Everflow shall inform Customer of that legal requirement before Processing, unless that law prohibits providing such information on important grounds of public interest within the meaning of the GDPR, CCPA, or applicable law.

(b) Customer instructs Everflow to Process Personal Data for the following purposes:

(i) Processing in accordance with the Agreement, which includes updating the Platform Services and preventing or addressing service or technical issues;

(ii) Processing initiated by Customer’s users in their use of the Platform Services; and

(iii) Processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.

2.4 Everflow will ensure that the persons Everflow authorizes to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Without limiting the foregoing, Everflow will take steps to ensure that any natural person acting under the authority of the Everflow and who has access to Personal Data does not Process the Personal Data except on instructions from Customer unless required to do so by applicable law as described above.

2.5 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for impact on the individuals to whom the Personal Data relates, Everflow shall implement appropriate technical and organizational measures to ensure a level of security to protect the Personal Data and prevent the unauthorized access to or use of it, appropriate to the risk, including the following (among other things) as appropriate:

(a) the pseudonymization and encryption of Personal Data;

(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and Platform Services;

(c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and

(d) process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.

In assessing the appropriate level of security, Everflow shall in particular take account of the risks presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data.

2.6 Customer acknowledges and expressly agrees that Everflow may retain and use third parties and subsidiaries as Sub-processors, including those listed below, for the Processing of Personal Data and to otherwise fulfill its contractual obligations under this DPA and that Everflow may subcontract the collection of or other Processing of Personal Data (“Sub-processor”); provided that Everflow shall be liable for the acts and omissions of its Sub-processors to the same extent it would be liable if performing the services of each Sub-processor directly under the terms of this Addendum and the Agreement.  Further:

(a) Everflow shall ensure that each Sub-processor is subject to the same data protection obligations as set out herein.

(b) The current list of Sub-processors for the Platform Services who process Customer-supplied Personal Data (“Sub-processor List”) follows:

2.7 Intentionally left blank.    

2.8 Taking into account the nature of the Processing, Everflow will assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests by individuals (or their representatives) for exercising their rights under the GDPR (such as rights to access their Personal Data).

2.9 Everflow will assist Customer in ensuring Customer’s compliance with the security obligations of the Data Protection Laws, as relevant to Everflow’s role in Processing the Personal Data, taking into account the nature of Processing and the information available to Everflow.

2.10 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.  Everflow shall notify Customer without undue delay, and in no event later than seventy-two (72) hours, after becoming aware of a Personal Data Breach concerning Personal Data Processed by Everflow or any of its subcontractors and where available, provide a description of the nature of the Personal Data Breach, the name and contact information of the data protection officer or point of contact, likely consequences of the Personal Data Breach, and description of any measures taken or proposed to address the Personal Data Breach and/or mitigate its possible adverse effects.  Everflow shall use reasonable efforts to assist Customer with any communications required as a result of such a Personal Data Breach.

2.11 Everflow will provide reasonable assistance to and cooperation with Customer for Customer’s performance of a data protection impact assessment of the Processing or proposed Processing of the Personal Data involving Everflow.

2.12 Everflow will provide reasonable assistance to and cooperation with Customer for Customer’s consultation with supervisory authorities in relation to the Processing or proposed Processing of the Personal Data involving Everflow.

2.13 Everflow will, in coordination with Customer, comply with any applicable obligation of Everflow itself under the Data Protection Laws to consult with a supervisory authority in relation to its Processing or proposed Processing of the Personal Data.

2.14 Everflow will, at the request of Customer, return to Customer and/or securely destroy or delete all Personal Data upon the end of the provision of services relating to Processing except to the extent that (as to Personal Data subject to the GDPR) European Union or member state law to which Everflow is subject, or (as to Personal Data subject to the CCPA) other applicable law requires storage of the Personal Data.

2.15 Customer may contact Everflow in accordance with the “Notices” provisions of the Agreement to request an audit of the procedures relevant to the protection of Personal Data, no more than once per calendar year during the term of the Agreement. Customer shall reimburse Everflow for any time expended for any such on-site audit at Everflow’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Everflow shall mutually agree upon the auditor (which may not be an Everflow competitor), the scope, timing, and duration of the audit, and the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Everflow.

2.16 Everflow will make reasonably available to Customer all information necessary for Customer to comply with Customer’s recordkeeping obligations under Data Protection Laws with respect to Everflow’s Processing of the Personal Data.

2.17 To the extent legally permitted, Customer shall be responsible for any costs arising from Everflow’s provision of any assistance and cooperation required to be provided by Everflow hereunder, including any fees for associated with provision of additional functionality; provided, however, that this paragraph shall not apply to activities undertaken by Everflow under Section 2.10 if the relevant Personal Data Breach was caused by Everflow.

2.18 If the GDPR takes effect in European Economic Area jurisdictions that are outside the European Union, references in this Addendum to the European Union and its member states shall be deemed amended to include such jurisdictions, consistent with their adoption of the GDPR.

3. Data Transfer

3.1 Everflow will use and disclose the Personal Data only to lawfully provide services to Customer and otherwise as permitted under the Agreement.

3.2 (a) The parties acknowledge that, in the provision of the Platform Services under the Agreement, Everflow may transfer Personal Data outside the European Economic Area (“EEA”). Where Personal Data is transferred outside of the EEA (“Data Transfer”), this Section 3 shall apply, unless the transfer is made to a third country, a territory or one or more specified sectors within that third country, or an international organization, that has been deemed to provide an adequate level of protection for personal data by the European Commission, in accordance with Article 45 of the GDPR.

(b) The parties agree to comply with the Data Protection Laws in relation to any Data Transfer and be subject to the terms of the standard contractual clauses for data transfers between EU and non-EU countries as outlined on Schedule 2. Without limiting the foregoing:


(i) Everflow shall provide an adequate level of protection to the subject Personal Data; and


(ii) Customer has the right and shall continue to have the right to transfer, or provide access to, the Personal Data to Everflow for Processing in accordance with the terms of the Agreement and this Addendum.o, the Personal Data to Everflow for Processing in accordance with the terms of the Agreement and this Addendum.

3.3 Upon notice, Everflow will take reasonable and appropriate steps to stop and remediate unauthorized Processing of the Personal Data.

Schedule 1

The table below contains Personal Data categories that the Everflow Platform Services allow to be collected from end users by default. Please note that while some of these data elements are more properly administrative data for the use of the Platform Services, they must be treated as Personal Data while tied to identifiable Personal Data like IP addresses or unique identifiers such as the IDFA.

Furthermore, Everflow may process electronic communications and data from or about its Customer’s end users, employees, clients and partners, in relation to the Platform Services, including login information, logfiles, support requests, mailing and/or billing addresses, email address, company name, website URL, user name, password, banking information and analytics data. The Personal Data transferred will be subject to processing activities in performance of the underlying Agreement for services between the Customer and Everflow.

Schedule 2

STANDARD CONTRACTUAL CLAUSES 

SECTION I

Clause 1

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)[1] 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.

Clause 2

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.

Clause 3

Third-party beneficiaries

(a)                 Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i)         Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii)         Clause 8 - Module Two: 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.

Clause 4

Interpretation

(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.

Clause 5

Hierarchy

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.

Clause 6

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

Docking clause

(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

Clause 8

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. 


8.1     Instructions

(a)                 The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b)                The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2     Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3     Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679. 

8.4     Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5     Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6     Security of processing

(a)                 The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b)                The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c)                 In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d)                The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7     Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8     Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union[4] (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.

Clause 9

Use of sub-processors

 

(a)                The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b)                Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.[8] The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c)                 The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d)                The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e)                 The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

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.

Clause 11

Redress

(a)                 The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(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.


Clause 12

Liability

 

(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.

Clause 13

Supervision


(a)                 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.

(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

Clause 14

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 [12];

(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 [for Module Three: , if appropriate in consultation with the controller]. 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 [for Module Three: the controller or] 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.  

Clause 15

Obligations of the data importer in case of access by public authorities

 

15.1   Notification

(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

Clause 16

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 [for Module Three: and the controller] 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.

Clause 17

Governing law

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 Ireland (specify Member State).

Clause 18

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 Ireland (specify Member State).

(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.

 

[1] 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/].

[2] Not applicable 

[3] Not applicable 

[4] 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. 

[5] Not applicable 

[6] Not applicable 

[7] Not applicable 

[8] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7. 

[9] Not applicable 

[10] Not applicable 

[11] Not applicable 

[12] 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.


APPENDIX

EXPLANATORY NOTE: 

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used. 


ANNEX I

A. LIST OF PARTIES

Data exporter(s): 

Name: Customer 

Address: As specified in the Agreement.

Contact person’s name, position and contact details: Contact details for the data exporter are specified in the Agreement.  

Activities relevant to the data transferred under these Clauses: The data importer provides the Platform Services to the data exporter in accordance with the Agreement. 

Signature and date: The parties agree that execution of the Agreement shall constitute execution of these Clauses by both parties. 

Role (controller/processor): controller 

Data importer(s): 

Name: Everflow Technologies Inc.

Address: 530 Showers Drive Suite 7-302, Mountain View, CA, USA 94040

Contact person’s name, position and contact details: Contact details for the data importer are specified in the Agreement. 

Activities relevant to the data transferred under these Clauses: The data importer provides the Platform Services to the data exporter in accordance with the Agreement. 

Signature and date: The parties agree that execution of the Agreement shall constitute execution of these Clauses by both parties. 

Role (controller/processor): processor 


B. DESCRIPTION OF TRANSFER 

Categories of data subjects whose personal data is transferred

Data subjects include the individuals about whom data is provided via the Platform Services by (or at the direction of) the data exporter. These individuals may include, for example: employees, other staff such as contractors and temporary workers, customers and clients (including their staff), other end users, suppliers (including their staff), relatives and associates of the above, advisers, consultants and other professional experts, shareholders, members or supporters, and students and pupils. 

Categories of personal data transferred 

Customer Personal Data, including data relating to individuals provided via the Platform Services by (or at the direction of) the data exporter. See Schedule 1 for this data.

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. 

See Schedule 1 of the DPA for this data.

The restrictions and safeguards specified in Annex II apply to these categories of Customer Personal Data (if any). 

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis). 

Customer Personal Data may be transferred on a continuous basis until it is deleted in accordance with the terms of the Agreement and/or Data Processing Amendment (as applicable). 

Nature of the processing 

The data importer will process Customer Personal Data to provide, secure and monitor the Platform Services in accordance with the Agreement. 

Purpose(s) of the data transfer and further processing 

The data importer will transfer Customer Personal Data to provide, secure and monitor the Platform Services in accordance with 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 

For the duration of the Agreement until deletion in accordance with the provisions of the Agreement or Data Processing Amendment (as applicable). 

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing 

As above.


C. COMPETENT SUPERVISORY AUTHORITY 

Identify the competent supervisory authority/ies in accordance with Clause 13 

The authority identified by the data exporter as its competent supervisory authority..

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA 

Data importer has implemented appropriate technical and organisational security measures to ensure a level of security appropriate to the risk, including the following (among other things) as appropriate:

1.      The pseudonymization and obfuscation of personal data;

2.      The ability to ensure the ongoing confidentiality, integrity, availability and resilience of data processing systems and services;

3.      A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of data processing.

Data importer is undergoing SOC 2 audit certification, with an expected completion date of February 2022.

The data importer may update or modify these security standards from time to time provided such updates and modifications will not result in a degradation of the overall security of the Platform Services during the term of the Agreement 

ANNEX III

LIST OF SUB-PROCESSORS 

The controller has authorised the use of the following sub-processors: 

See section 2.6(b) of the DPA.