APPENDIX 1: GENERAL PROCESSING CONDITIONS

(1) DEFINITIONS 
‍
‍For the purposes of this DPA and unless otherwise indicated in this Agreement, the terminology and definitions as used by the Regulation (EU) 2016/679 ("GDPR") and/or when applicable by the UK General Data Protection Regulation (“UK GDPR”), Data Protection Act 2018 ("UK Data Protection Laws") and the applicable data protection and privacy laws of the USA when Appendix 5 of this DPA applies.In addition, the following terms shall have the following meaning:

‍Addendum shall mean the United Kingdom International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, issued by the UK Information Commissioner and effective from 21 March 2022. 

Agreement shall mean the Services Agreement that regulates the use of each Relay Commerce Service (as specified in the Processing Instructions in the Purpose of processing / Legal grounds for processing - Services Agreement column next to each relevant service)  and any successive agreement concluded by and between the Controller and the Supplier. 

‍Affiliate shall mean a person/legal entity that directly, or indirectly through one or more intermediaries, owns or controls, is owned or is controlled by, or is under common ownership or control with, another person/legal entity.

‍Controller Personal Data shall mean any personal data processed by the Supplier or any Affiliate / Subprocessor of the Supplier on behalf of the Controller or any of its Affiliates, as set out in the Processing Instructions and elsewhere in this DPA.

‍Security Requirements shall mean the technical and organisational security measures included in Appendix 6 to this DPA.

‍Controller or Data Controller or data exporter shall mean the Controller and/or any its Affiliates for which the Data Processor processes Controller Personal Data as set out in the Processing Instructions and elsewhere in this DPA. “Data Controller” shall be understood to include “Business” and analogous terms under applicable Data Protection Law.

‍Data Processor or Supplier or data importer shall mean the individual who, or entity that, processes Personal Data on behalf of the Controller. “Data Processor” includes “Service Provider” and analogous terms as defined under applicable Data Protection Law.

‍Data Protection Law shall mean any laws relating to the processing of personal data and the protection of privacy to which Parties are subject, including without limitation, the GDPR, the Privacy and Electronic Communications Data Protection Directive (2002/58/EC) and any laws and regulations implementing or created pursuant to the GDPR or the Privacy and Electronic Communications Directive, the UK GDPR, the UK Data Protection Act 2018 the California Consumer Privacy Act of 2018 or their successor
regulations.

‍Security Breach shall mean a breach in the technical and/or organisational measures to protect the confidentiality, integrity or availability of Personal Data or an incident that leads to the accidental or unlawful destruction, loss, alteration or unauthorised disclosure of, or access to, Personal Data.

‍Data Subject shall mean an identified or identifiable natural person. “Data Subject” shall be understood to include “End Users” or “Individuals” that may interact with the Relay Commerce Services when they are used by or deployed by the Controller or when the Controller enters their data into the services. The terms “Individual” or “Consumer” and any analogous terms are to be interpreted as per applicable Data Protection Law.

‍Data Subject Request shall mean requests of Data Subjects to exercise their rights under Data Protection Law.

‍Member State shall mean a country that is a member of the European Economic Area ("EEA") and the United Kingdom.

‍Parties/Party shall mean Controller and Supplier, which will jointly be referred to as “Parties” and individually referred to as a "Party".

‍Processing Services or Services shall mean the services which the Supplier agreed to provide Controller and/or its Affiliates as per the concluded Services Agreement and as further specified in the Processing Instructions.

‍SCCs shall mean the standard contractual clauses annexed to the EU Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.
‍
Relay Commerce Services shall mean the online platform(s) and software program(s) with the core functionalities as described in the Services Agreement and any related services, that the Supplier offers to the Controller under the Services Agreement and the respective underlying infrastructure, whereby provision of the Relay Commerce Services requires the processing of certain Controller Personal Data for its normal and intended functioning, as further specified in the Processing Instructions and this DPA.

‍Subprocessor shall mean another Data Processor, located within or outside the EEA and/or the United Kingdom, that is engaged by Supplier as a subcontractor for the performance of the Processing Services or parts of the Processing Services on behalf of Controller and/or its Affiliates. The list of engaged subprocessors is disclosed in the appended Processing Instructions.
‍

(2) ROLES
‍
Parties acknowledge and agree that with regard to the processing of the Personal Data, the Controller or its Affiliates are the Data Controllers and the Supplier and its Affiliate are the Data Processors

The Controller shall be entitled to exercise the Data Controller’s contractual rights and powers (i.e., the rights and powers ensuing from this DPA) and the Data Controller’s statutory privacy law-related rights and powers (i.e. the rights and powers ensuing from the Data Controller’s position) vis-à-vis the Supplier (for the avoidance of doubt, the Data Controller shall remain entitled to exercise these rights and powers in its own name at any time at its discretion).
‍
(2.1) The Parties agree that Affiliates may accede to or leave this DPA at any time as a Data Controller subject to a notice to the Supplier.
‍
(2.2) To the extent applicable and the Data Controller(s) are contracting parties to this DPA instead of third party beneficiaries, the Parties agree that the bundling of the Data Controllers within this single DPA is only undertaken for efficiency purposes (i.e., to avoid a multitude of different DPAs with different entities) and (i) shall result in legally separate DPAs between the respective Data Controllers and the Supplier and (ii) shall not create any legal or other relationship whatsoever between the “bundled” Data Controllers and the Supplier. For the avoidance of doubt: the obligations of each Data Controller under this DPA shall be several but not joint in respect of the obligations of any other Data Controller and no Data Controller shall be liable to the Supplier for the actions of any other Data Controller as permitted under applicable law.
‍
‍
(3) OBLIGATIONS OF THE SUPPLIER AND THE CONTROLLER
‍
(3.1) The Supplier shall solely process Controller Personal Data as instructed in this DPA, unless the Data Controller issues additional written instructions as mutually agreed by the parties or as otherwise required by applicable Data Protection Law. In the latter case, the Supplier shall inform the Data Controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest.

(3.2) The Supplier shall upon the Data Controller's request promptly provide to the Data Controller all information and documentation reasonably requested to demonstrate compliance with the obligations of the Supplier under Data Protection Law and this DPA.

(3.3) Supplier shall immediately notify the Data Controller if, in its opinion:
‍
  (a) an instruction of the Data Controller infringes Data Protection Law or if applicable law requires it to process the Controller Personal Data other than in accordance with the Data Controller's instructions and this DPA; and/or

  (b) changes in any laws, regulations or government policies applicable to Supplier that are likely to have an adverse effect on the obligations of this DPA and/or the rights and interests of the Data Subject’s whose personal data is processed in relation to this DPA.

Following such notification, the Data Controller may suspend the transfer to and processing of Controller Personal Data by Supplier and terminate the Agreement and this DPA at its discretion at any time without any liability towards the Supplier

3.4 The Supplier shall implement appropriate technical and organisational security measures and, at a minimum, the measures included in the Security Requirements when processing Controller Personal Data. The Supplier shall monitor developments in law, technology and security and will continually adopt additional measures, if and where needed, to ensure that the measures implemented remain up to date and appropriate, taking into account the nature of the Controller Personal Data and the risks which might arise from its unauthorised or unlawful destruction, loss, alteration, access or disclosure.

3.5 The Supplier shall only permit persons to access Controller Personal Data as strictly necessary for the provision of the Processing Services and in particular only to employees of Supplier and employees of any Subprocessors that are bound by confidentiality obligations or are under an appropriate statutory obligation of confidentiality with regard to the Controller Personal Data.

3.6 The Supplier shall assist the Controller with its obligation, where applicable under Data Protection Law, to carry out a data protection impact assessment (or similar required data protection assessments) and prior consultation with supervisory authorities in relation to the processing of Controller Personal Data including by providing the necessary information to the Data Controller and fully cooperating with any request or investigation in relation to such data protection impact assessment by a supervisory authority. 

3.7 The Data Controller shall exclusively handle and respond to Data Subject Requests relating to Controller Personal Data. The Supplier shall notify the Data Controller if it receives a Data Subject Request, and in any event no later than 72 hours after receiving such request. The Supplier shall, insofar as this is reasonable and possible, assist the Data Controller with the fulfilment of the Controller’s obligation to comply with the Data Subject Requests. 

3.8 During the term of the Agreement, the Supplier is obliged to either dispose of Controller Personal Data in accordance with the retention schedule as set out in the Processing Instructions or to return Controller Personal Data back to the Data Controller, unless applicable Data Protection Law requires that the Supplier retain such data. In such cases, the Supplier shall ensure that Controller Personal Data are kept confidential and are not further processed.

3.9 After the end of the provision of the Processing Services, the Supplier shall, if explicitly requested by the Controller to do so, transfer free of charge the Controller Personal Data to the Controller within 30 days after the termination of the Services Agreement. Otherwise, the Supplier shall delete the Controller Personal Data (including any back-up copies). The Supplier shall at the first request of the Data Controller attest (or if possible certify) that all Controller Personal Data has been deleted. Where applicable Data Protection Law requires Supplier to retain Controller Personal Data, Supplier shall promptly inform the Data Controller and shall ensure that Controller Personal Data are kept confidential and are not further processed.

3.10 If the Controller requests at its own discretion a copy of the Controller Personal Data held by the Supplier and its Subprocessor(s), the Supplier shall provide this without undue delay, free of charge and in a structured and commonly used format.
‍

4 INFORMATION AND NOTIFICATION OBLIGATIONS

4.1 The Supplier shall promptly and in writing notify the Controller of:

  (a) any legally binding request for access to Controller Personal Data by a public authority received by the Supplier or its Subprocessor(s) to enable the Controller to intervene and seek relief from such disclosure, unless the Supplier is legally prohibited from providing such notice, despite having used its reasonable best efforts to waive the prohibition;

  (b) any direct access by public authorities to Controller Personal data in which case the Supplier shall provide the Controller with all information available to the Supplier in this respect; and

  (c) any order, request, complaint or other demand by a court, supervisory authority or other regulator in relation to the Controller Personal Data received by the Supplier or its Subprocessor(s), without responding to such order, request, complaint or demand unless the Supplier has been authorised to do so in writing by the Controller. The Supplier shall provide all such cooperation and assistance to the Controller as the Controller may reasonably require in relation to any such order, request, complaint or other demand.

4.2 In the event Clause 4.1 (a) or (c) applies and it concerns a request, order, complaint or other demand received by the Supplier, the Supplier shall:

  (a) request that the public authority directs its request at the Data Controller, instead of Supplier. The Supplier will document any such request;

  (b) act in compliance with its established policies regarding the disclosure of personal data to public authorities;

  (c) oppose any request for access or disclosure and contest its legal validity to the extent legally permitted under applicable law; and

  (d) provide the minimum amount of information permissible when legally required to respond to the request for access or disclosure in case of unsuccessful opposition to the request, based on a reasonable interpretation of the request, and request the public authority to reduce the scope of any such request determined to be massive, disproportionate and indiscriminate in a manner that it would go beyond what is necessary in a democratic society.

4.3 Upon request of the Data Controller, the Supplier shall provide the Data Controller with:

  (a) an overview of laws and regulations that permit access to the Controller Personal Data in the jurisdiction to which the Supplier is subject, to the extent the Supplier is reasonably aware of such laws and regulations;

  (b) general information on the requests received from and/or direct access by public authorities, including on the nature and number of such requests in the preceding 12 month period relating to personal data it processes as a Data Processor. Where possible, such information will include the following:

     (i) information about the nature and number of such requests received by the Supplier;
     (ii) the type of data requested;
     (iii) the requesting public authority;
     (iv) the legal basis to disclose personal data to the public authority; 
     (v) in case the Supplier reasonably believes that it is legally prohibited to provide the information in subsections (i) to (iv) above, the extent to which such prohibition applies; and

  (c) any measures taken to prevent access by public authorities to the Controller Personal Data.

4.4 The Supplier is obliged to notify the Data Controller in writing without undue delay, and in any event within 48 hours, of any Data Security Breach after the Supplier becomes aware thereof. The Supplier shall: a) assist the Data Controller in satisfying the Data Controller’s obligations under Data Protection Law to inform the Data Subjects and the applicable supervisory authorities, as may be required, of the Data Security Breach by providing all necessary information available to the Supplier in relation to the Data Security Breach and its remediation; b) take all necessary steps to investigate, mitigate and remediate the cause and the risks posed by the Data Security Breach, without obstructing the data Controller’s investigations as may be necessary to comply with its obligations under Data Protection Law to inform the Data Subjects and the supervisory authorities; and c) where a Data Security Breach is discovered that was caused by the Supplier or its Subprocessors, the Supplier shall review the implemented technical and organisational measures and, if needed, shall make appropriate changes to prevent such Data Security Breach from reoccurring.
‍

5 AUDIT
‍
5.1 The Supplier shall make available to the Controller on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections by the Controller or an auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Supplier or the Subprocessors. The Supplier shall immediately inform the Controller if, in their opinion, an audit request/instruction infringes the GDPR or other applicable data protection provisions, this DPA, or the Services Agreement.

5.2 When undertaking an audit, the Controller shall give the Supplier a notice at least five (5) business day prior to any audit or inspection being conducted under this section and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, unavoidable, to minimise) any damage, injury or disruption to the Supplier’s or any Subprocessors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. The Controller may conduct an audit by providing a notice to Supplier less than five (5) business days ahead if 1) there is an extraordinary audit to clarify the circumstances of a Data Breach, or 2) when the Controller is required or requested to carry out such an audit by a supervisory authority or any similar regulatory authority responsible for the enforcement of Data Protection Law in any country or territory. The Supplier or a Subprocessor need not give access to its premises for the purposes of such an audit or inspection:

  (a) to any individual unless he or she produces reasonable evidence of identity and authority;
‍
  (b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and the Controller undertaking an audit has given notice to the Supplier that this is the case before attendance outside those hours begins.

5.3 The Supplier shall, upon request also provide the Controller or the mandated auditor with documentation of implemented technical and organisational measures to ensure an appropriate level of security, and other information necessary to demonstrate the Supplier's or the Subprocessor’s compliance with its obligations under this DPA and relevant Applicable legislation, but shall provide access to information concerning the Supplier's or the Subprocessor’s other information subject to confidentiality obligations.

5.4 The Controller shall bear any and all costs related to any audit, regardless of the outcome of the audit or the reason for the audit.
‍

6 SUBPROCESSING

6.1 Subject to the Supplier complying with the obligations set forth in this Clause 6, the Data Controller grants the Supplier general authorisation to engage Subprocessors. 

6.2 The Supplier shall choose any Subprocessor diligently and ensure that any Subprocessor provides sufficient guarantees that it will implement and maintain appropriate technical and organisational measures to ensure that its processing of Controller Personal Data meets the requirements set out in this DPA and applicable Data Protection Law. 

6.3 The Supplier shall enter into a written contract with any Subprocessor (“Subprocessing Agreement”) and such Subprocessing Agreement shall impose upon the Subprocessor equivalent obligations as imposed by this DPA upon the Supplier, in particular in relation to the implementation of appropriate technical and organisational measures to meet the requirements of Data Protection Law, to the extent relevant to the subcontracted Processing Services. 

6.4 Prior to entering into this DPA, the Supplier will provide to the Data Controller a list of all Subprocessors engaged by Supplier in the Processing Instructions (see “List of Subprocessors” represented as the relevant column in the table of the Processing Instructions, whereby this list forms an integral part of this DPA). In the alternative, Supplier may in the Processing Instructions provide a link to an up to date online List of Subprocessors on its Relay Commerce Service related website fra all Subprocessors engaged by each Relay Commerce Service.

6.5 The Data Controller and the Supplier hereby agree, that all of the subprocessors on the List of Subprocessor, both at the moment of signing of this DPA and in all future instances, represents the List of Subprocessors which have been accepted by the Data Controller as being allowed to be engaged for the purposes of supplying the Processing services. The Controller is required to continuously monitor the List of Subprocessors and raise any objection with the Supplier via email at dpo@relaycommerce.io. 

6.6 If the Data Controller has a reason to object to a Subprocessor, the Data Controller shall notify the Supplier thereof in writing. If the Data Controller objects to the use of the Subprocessor, the Parties shall use reasonable efforts to address the objection through one of the following options: (a) the Controller will discontinue using the DevRev Services; (b) the Supplier will offer an alternative to provide the Processing Services without such Subprocessor; or (c) the Supplier will take the corrective steps requested by the Data Controller in its objection (which would therefore remove Controller's objection) and proceed to use Subprocessor. If none of the above options are reasonably available and the Controller has not objected to the engagement of a new Subprocessor within five (5) days after the receiving sufficient notification, such Subproecessor shall be deemed as duly accepted by the Controller. If an objection had been duly raised by the Controller and no remedy could be found by either party, either party may terminate the affected Services Agreement with reasonable prior written notice without any liability towards the other party. The Supplier must not transfer Controller Personal Data to a Subprocessor which had not been accepted by the Controller or during the notice period. 

6.7 The Supplier shall provide, at the data Controller’s request, a copy of each sub-processor data protection agreement and any subsequent amendments to the Controller. To the extent necessary to protect business secrets or other confidential information, including personal data, the Supplier may redact the text of the agreement prior to sharing a copy.

6.8 The Supplier shall remain fully responsible to the Controller for the performance of the sub-processor’s obligations under this DPA. The Supplier shall notify the Controller of any failure by the sub-processor to fulfil its obligations under the DPA or the individual data processing agreement.

6.9 The Supplier shall agree a third-party beneficiary clause with the sub-processors whereby – in the event the Supplier has factually disappeared, ceased to exist in law or has become insolvent – the Controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.


7 DATA TRANSFERS

7.1 The Data Controller authorises the Supplier to transfer the Controller Personal Data to the Processing Locations listed in the Processing Instructions. Where Supplier intends to transfer Controller Personal Data to a Processing Location not yet authorised by the Data Controller, the Supplier shall provide the Data Controller with ten (10) days advance notice of this intent. The Data Controller has the right to object in writing within five (5) days following receipt of such notice, citing its reasons for objecting. The Parties shall resolve such an objection in accordance with Clause 6.6 (mutatis mutandis). 

7.2 The parties recognise, that the Supplier is established in the USA, namely a country outside the EEA that is not recognized as providing an adequate level of data protection by the European Commission at the time of the conclusion of this DPA, whereby the Data Controller hereby designates, that the appended SCCs (or possibly the other appendices, should the Data Controller be an entity, that is established in the UK or if UK / USA citizen data forms part of the Controller Personal Data) provide for a sufficient international data transfer mechanism. If an existing adequacy finding is amended or invalidated, or a derogation can no longer be relied upon in the opinion of the Data Controller, the Parties hereby agree that the potential new version of the SSCs apply to the transfer and further processing of the Controller Personal Data under this DPA.

7.3 When Clause 7.2 triggers the application of the SCCs and, where relevant, the Addendum between parties, the following terms apply:
‍
    (a) The parties hereby agree that the SCCs shall automatically be replaced by any successor or replacement standard contractual clauses as approved by the European Commission. Parties shall each in good faith take those actions required to ensure any successor or replacement standard contractual clauses come into effect between Parties;

    (b) The parties hereby agree that the Addendum shall be automatically replaced by any successor or replacement clauses approved under UK laws. Parties shall each in good faith take those actions required to ensure any successor or replacement of the Addendum comes into effect between Parties;

    (c) The information required in Annexes I and III of the SCCs shall be as set out in the Processing Instructions. The information required in Annex II of the SCCs shall be as set out in the Security Requirements; 

    (d) The SCCs and, where relevant, the Addendum shall prevail and take precedence over conflicting terms in the General Data Processing Conditions.

7.4 In the event of a data transfer to a country outside the EEA and/or UK as set out in clause 7.2, the Supplier (and its Subprocessor(s), as applicable) will assess whether the laws applicable to it provide adequate protection under Data Protection Law. To the extent that it determines that any such laws are not in line with the requirements of the SCC, Addendum and/or an adequacy decision issued under Data Protection Law, and applicable Data Protection Law, it shall comply with the safeguards set out in Clauses 7.5-7.6 and provide the Data Controller the information and documentation reasonably requested to demonstrate compliance with these safeguards.

7.5 The Supplier (and its Subprocessor(s), as applicable), shall adopt supplementary measures to protect Controller Personal Data in accordance with the requirements of Data Protection Law, including by implementing appropriate technical and organisational safeguards, such as encryption or similar technologies, access controls or other compensating controls, to protect Controller Personal Data against any interference that goes beyond what is necessary in a democratic society to safeguard national security, defence and public security.

7.6 The Supplier warrants for itself and its Subprocessor(s), as applicable, that they:

    (a) have not purposefully created, or are legally required by national law or government policy to create or maintain, any means by which a public authority or third party can bypass their security mechanisms, authentication procedures and/or software to gain access to and/or use their systems and/or the Controller Personal Data, such as a back door or similar programming, or the handover of the encryption key to access such data; and

    (b) have not purposefully created or changed their business processes, security mechanisms, software and/or authentication procedures in a manner that facilitates access to their systems and/or the Controller Personal Data by public authorities or third parties.

7.7 The parties hereby agree, that where the Supplier engages a USA based Subprocessor in accordance with this DPA and the Processing Instructions (i.e. for carrying out specific processing activities on behalf of the Supplier for the provision of the Relay Commerce Services to the Controller) and such engaged processing activities involve the transfer of Controller Personal Data within the meaning of Chapter V of the GDPR, the Processor may also engage such Subprocessor without the implementation of SCC (and additional safeguards), if such Subprocessor has duly undergone and achieved full self-certification in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate level of protection of personal data under the EU-US Data Privacy Framework (i.e. the new EU-USA data transfer framework as per the stated adequacy decision from the 10th of July 2023).
‍

8 LIMITATION OF LIABILITY

8.1 Each Party is liable for its obligations set out in this DPA and in the applicable Data Protection Law. Any liability arising out of or in connection with a violation of the obligations of this DPA or under applicable Data Protection Law, shall follow, and be governed by, the liability provisions set forth in, or otherwise applicable to, the Services Agreement. If the liability provisions in the Service Agreement do not cover liability under this DPA or applicable Data Protection Law then neither party will exclude or limit its liability under this DPA.
‍

9 INDEMNIFICATION

9.1 The Controller will defend, indemnify, and hold harmless the Supplier and the officers, directors, employees, successors, and agents of Controller from all claims, damages, liabilities, assessments, losses, costs, administrative fines and other expenses (including, without limitation, reasonable attorneys' fees and legal expenses) arising out of or resulting from any claim, allegation, demand, suit, action, order or any other proceeding by a third party (including supervisory authorities) that arises out of or relates to the violation of the Controller’s obligations under this DPA or applicable Data Protection Law.
‍

10 MISCELLANEOUS

10.1 This DPA shall be governed by the laws of the Republic of Slovenia, where the EEA representative of the Supplier is located.

10.2 The place of jurisdiction for all disputes regarding this DPA shall be as determined by the Services Agreement, or, in the absence thereof: Ljubljana, Slovenia.

10.3 Nothing in this DPA shall be construed so as to create a partnership or joint controller or joint venture relationship between the Parties.

10.4 To the extent that any changes in applicable law, regulatory requirements or case law compel the parties to amend the terms of this DPA, the Parties shall without undue delay enter into negotiations to appropriately address such changes.

10.5 Parties mutually agree that this DPA is subject to amendments in light of regulatory changes or other changing circumstances and hereby agree to amend this DPA in good faith where necessary.

10.6 Should any provision of this DPA be held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties' intentions as closely as possible or – should this not be possible – (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein. The foregoing shall also apply if this DPA contains any omissions.

10.7 In the event of inconsistency between the provisions of this DPA and any other agreements between the parties, including the Agreement, the provisions of this DPA shall prevail with regard to the parties' obligations under the DPA or any matter relating to data protection.

APPENDIX 2: DATA PROCESSING INSTRUCTIONS REGARDING THE PROCESSING OF CONTROLLER PERSONAL DATA IN CONNECTION WITH THE SERVICE & THE LIST OF SUBPROCESSORS (“PROCESSING INSTRUCTIONS”)

General method and purpose of data collection

In order to provide the Relay Commerce Services and the corresponding features as per the concluded Services Agreement:
‍
(a) the Controller may input Controller Personal Data directly into the Relay Commerce Services himself;
(b) Controller Personal Data may also be entered into the Relay Commerce Services by partners, affiliates, contractors of the Controller or other persons and entities that are authorised or instructed to do so by the Controller, and;
(c) by end users, consumers or other individuals which interact with the Relay Commerce Services that had been integrated or put into use by the Controller (e.g. integrated with the websites/systems of the Controller, etc.).
‍
In all of the cases outlined above, the Supplier is therefore instructed by the Controller under this DPA to collect, store and process the entered data, so that the Controller may use the Relay Commerce Services for his own business interests.

General categories of Data Subjects

The categories of Data Subjects whose personal data may be processed under this DPA correspond to the features the Controller elects to use in connection with the Relay Commerce Services and are thereby defined by the individual use-case of the Controller as follows:

-   Controller's End Users (i.e. employees, consumers, website visitors well as other individuals who freely (or in the course of a business or other relationship) offer their personal data to the Controller or his Affiliates/partners); 
‍
-   other Data Subjects (i.e. when the Controller or his Affiliates/partners enter and use data of any other Controller Personal Data into the Relay Commerce Services);

whereby the Controller expressly warrants to the Supplier, that he has satisfied the requirements regarding lawfulness of processing based on Article 6 of the GDPR or any other Data Protection Law requirement that might be binding in relation to Controller Personal Data prior to collecting/transferring/and otherwise processing such data in any way in connection with the Relay Commerce Services.
‍
Personal Data types and the subject-matter, nature and purpose of processing and List of Subprocessors

Subject to the Controller's use of the Relay Commerce Services, the following processing of Controller Personal Data is instructed by the Controller to be carried out by the Supplier or his Affiliates/Subprocessors in order to provide each feature of the Relay Commerce Services:

Retention Schedule

The Supplier will store the Controller Personal Data for as long as it is necessary to fulfil the above stated purposes for processing and shall delete and procure the deletion of all copies of stored Controller Personal Data within 30 (thirty) business days (or 90 (ninety) days where the data is shared with AWS or Sentry - see above) of the date of termination of the Services Agreement (i.e. termination by either the Controller or the Provider under the applicable clauses of the Services Agreement such as product/widget uninstall, as the case may be) or the date of the user account deletion (whatever comes first, whereby termination of the Services Agreement also means that the user account of the Controller and all corresponding Controller Personal Data shall be deleted in 30 days or 90 days where the data is shared with AWS or Sentry - see above).

Individual data deletion takes place instantly after initiation by the Controller via the relevant User dashboard/dedicated feature or by contacting the Supplier directly. 

APPENDIX 3: 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) 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 Processing Instructions.
(d) The Processing Instructions and Security Requirements form 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 8.1 (b), 8.9(a), (c)-(e); 
(iii) Clause 9(a), (c)-(e);
(iv) Clause 12(a), (d), and (f)
(v) Clause 13
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18.

(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 - Intentionally left blank‍

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 importer acting as its controller.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.

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.

(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 four weeks in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

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

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

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

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

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) 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 the Processing Instructions shall act as competent supervisory authority.

Where the data exporter is not established in an EU/EEA 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 the Processing Instructions, 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 the Processing Instructions, 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
‍The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.


(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

   (i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

   (ii) the laws and practices of the third country of destination – including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

   (iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

³As 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.lause, 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 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 collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof. 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 the EU Member State in which the data exporter is established. Where such laws do not allow for third party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third party beneficiary rights. The Parties agree that this shall be the Laws of the Netherlands.
‍

Clause 18 - Choice of forum and jurisdiction
‍Any dispute arising from these Clauses shall be resolved by the courts of the jurisdiction of the applicable Controller entity.

APPENDIX 4: UNITED KINGDOM INTERNATIONAL DATA TRANSFER ADDENDUM TO THE EU COMMISSION STANDARD CONTRACTUAL CLAUSES

VERSION B1.0, in force 21 March 2022
This Addendum has been issued by the UK Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

APPENDIX  5: UNITED STATES PROCESSING CLAUSES

‍This Appendix 5 of the DPA shall apply to the extent Supplier processes personal data that relates to an identified or identifiable household or individual in the United States, where such personal data is provided by or on behalf of the Data Controller to Supplier in connection with Supplier’s performance of the Services pursuant to the Agreement (“US Personal Data”).

To the extent Supplier processes US Personal Data as a Data Processor or “service provider” under applicable Data Protection Laws, Supplier agrees to process such US Personal Data subject to the General Processing Conditions set forth in Appendix 2 of this DPA and the following provisions:

1. Supplier acknowledges that the Controller is disclosing to Supplier, or authorising Supplier to collect on the Data Controller’s behalf or otherwise making available, US Personal Data only for the limited and specified purposes set out in the Processing Instructions set forth in Appendix 2 of this DPA, or as otherwise specified under the Agreement and any applicable Statement of Work (collectively, the “Instructions”)

2. Supplier shall: (1) process US Personal Data only as set forth in the Instructions; and (2) process US Personal Data at all times in compliance with Data Protection Laws, including by providing no less than the level of privacy protection as required by Data Protection Laws.

3. Supplier shall not: (1) retain, use, disclose, or otherwise process US Personal Data except as necessary for the business purposes specified in the Instructions; (2) “Sell” or “Share” US Personal Data as those terms are defined under Data Protection Laws; (3) retain, use, disclose, or otherwise process US Personal Data in any manner outside of the direct business relationship between the Data Controller and Supplier; or (4) combine any US Personal Data with any personal data that Supplier receives from or on behalf of any other third party or collects from Supplier’s own interactions with Data Subjects, provided that Supplier may so combine US Personal Data with other personal data for a purpose permitted under Data Protection Laws if directed to do so by the Data Controller or as otherwise expressly permitted by Data Protection Laws.

4. The Data Controller may, upon providing reasonable notice to Supplier, take all reasonable and appropriate steps to prevent, stop, or remediate any unauthorized processing of US Personal Data.

5. Supplier agrees to promptly notify the Data Controller if it can no longer comply with Data Protection Laws applicable to US Personal Data, no later than three business days after it makes a determination that it can no longer meet its obligations.

6. For purposes of this Appendix 5 of the DPA, “Deidentified Data” means data originally created from US Personal Data that has been deidentified or anonymized such that it cannot reasonably be used to infer information about, or otherwise be linked to, a Data Subject and where such data is processed only in accordance with this Clause 6 of Appendix 5 of the DPA. To the extent the Data Controller discloses or otherwise makes available Deidentified Data to Supplier, or to the extent Supplier creates Deidentified Data from US Personal Data, Supplier shall (1) adopt reasonable measures to prevent such Deidentified Data from being used to infer information about, or otherwise being linked to, a particular natural person or household; (2) publicly commit to maintain and use such Deidentified Data in a deidentified form and to not attempt to re-identify the Deidentified Data, except that Supplier may attempt to re-identify the data solely for the purpose of determining whether Supplier’s deidentification processes are compliant with Data Protection Laws; and (3) before sharing Deidentified Data with any other party, including Subprocessors, contractors, or any other persons (“Recipients”), contractually obligate any such Recipients to comply with all requirements of this Clause 6 of Appendix 5 of the DPA (including imposing this requirement on any further Recipients).

APPENDIX 6: SECURITY REQUIREMENTS 

The controller accepts the following Security Requirements as adequate and sufficient at the time of the conclusion of this Agreement. The Supplier shall now offer a lower level of Security Requirements than that listed at the time of the conclusion of this Agreement.
‍
The Security Requirements describe the baseline technical and organisational measures that the Supplier will maintain through its systems and the Relay Commerce Services and that the Supplier will operate to ensure confidentiality, integrity and availability of any data (including but not limited to personal data) created, collected, transferred or otherwise processed and provide the Services to Controller, in a manner that the data and the Services are sufficiently protected at all times (such as where appropriate, encryption, pseudonymization and anonymization). 

Security Requirements that have been integrated for a specific Relay Commerce Service:
Flockler - https://flockler.com/technical-and-organisational-measures

SmartrMail - Secured networks; Strong passwords; Limited access to personal data by data importer’s staff; Information security audits; and Anonymisation of personal data (when possible).

List of Security Requirements that are implemented and maintained by the Supplier across its organisations and systems (whereby, in the case of overlap or ambiguity the above listed integrated requirements shall be deemed as specific and applicable for each Service):

APPENDIX 7: USE OF PERSONAL DATA IN AI SYSTEMS

‍This Appendix 6 of the DPA shall apply to the extent the Supplier processes personal data that is or may be used in AI Systems. It applies if the AI System is used on a stand-alone basis or as a component of a Service. This Appendix 6 applies irrespective of whether the AI System is itself the Service provided by the Supplier or is merely a functionality of the Services provided by the Supplier to the Data Controller. This Appendix 6 shall not limit any of the Supplier’s obligations set out in the Controller Processing Requirements. 

DEFINITIONS

For the purposes of this Appendix 6 and unless otherwise indicated in the Controller Processing Requirements, the following terms shall have the following meaning:

1.1  AI Laws means any applicable law, regulation, directive or binding court order applicable to the provision of any part of the Services which involves the development, deployment, publication, use, maintenance, support and/or improvement of an AI System in any relevant jurisdiction as amended from time to time. 

1.2. AI System  means (a) any machine-based system or model that is designed to operate with varying levels of autonomy and that can, for explicit or implicit objectives, generate Outputs that influence physical or virtual environments (including any artificial intelligence model that is trained on broad data at scale, is designed for generality of Output, and can be adapted to a wide range of distinctive tasks); or (b) any technology, system or tool enabled by a machine-based system or model of the type referred to in  (a) above, as the case may be.

1.3 Adverse Impact means the negative effect an unfair and/or biased output may have on a Data Subject. 

1.4 Malfunctions means, without limitation, biases, discrimination, inconsistencies. 

1.5 Output means, without limitation, any predictions, recommendations, decisions or classifications as the case may be.

GENERAL CONDITIONS

‍2.1 The Supplier shall only use Personal Data for the AI System if and to the extent it is strictly necessary for the provision of the Service, and only for the purposes for which the Data Controller has given prior written approval. The Data Controller's prior written approval for the use of Personal Data in the AI System is not approval or authorization for using Personal Data in training the AI System or any AI system.  Use of Personal Data for training an AI System or any AI system requires the Data Controller's prior written approval.

2.2. Where the Supplier processes Personal Data in accordance with Clause 2.1., the Supplier warrants to the Data Controller that it will:

(a) comply with all the applicable Data Protection Laws and all applicable AI Laws;

(b) treat all Personal Data generated as part of the Output as the Controller Personal Data, which shall be subject to all the provisions of the Controller Data Processing Requirements;

(c) only process the minimum amount of Personal Data required to provide the Services to the Data Controller;inform the Data Controller about any foreseeable adverse impact the AI System may have on the Data Subject as per Clause 2.4t; 

(d) inform the Data Controller about any foreseeable adverse impact the AI System may have on the Data Subject as per Clause 2.4t;

(e) implement all necessary Technical and Organisational measures as set out in the Security Requirements to ensure an appropriate level of accuracy, transparency, fairness, robustness and cybersecurity, and the security and confidentiality of personal data, including but not limited to using privacy by design and default measures (as defined in the applicable Data Protection Laws) and other privacy-enhancing techniques, including but not limited to technical limitations on using and re-using the Personal Data, and using pseudonymisation and encryption techniques where possible;

(f) design and develop the AI System in a manner that, where relevant, it can be effectively overseen by a natural person and/or endowed with technical capabilities to allow for continuous monitoring by the Data Controller during the period in which the AI System is in use to avoid any potential biases (including unintentional or hidden), and the risk of discrimination or other adverse impacts on the Data Subjects by virtue of the processing of Personal Data;

(g) design the AI System in a manner that it respects Data Subject rights under the applicable Data Protections Laws;

(h) regularly train, test and audit the AI System in view of possible Malfunctions. The Supplier shall ensure that appropriate mitigation measures are implemented to sufficiently address any Malfunction. In the event the Supplier has identified a Malfunction, it shall promptly notify the Data Controller and provide a detailed explanation of the Malfunction, including the effect and consequences for the Data Controller, Data Subjects and Personal Data concerned, and the mitigating measures that have been or will be taken to appropriately address the Malfunction. It is the Supplier's responsibility to address and correct any Malfunction at its own cost and expense.

2.3. If Supplier requests the Data Controller to authorise the use of Personal Data for training and testing the AI System, Supplier will provide Data Controller with (a) appropriate documentation that sets out, at a minimum, the purposes of the use of Personal Data for the training and testing of the AI systems (b) a detailed explanation as to why these purposes cannot be achieved by using anonymous data or pseudonymous data and, the minimum Personal Data or pseudonymised data required, the storage and segregation of the Personal Data or pseudonymised data (c) the retention period of the Personal Data or pseudonymised data used (d) the technical measures taken to ensure the security and confidentiality of the Personal Data and to ensure the Data Subject rights under applicable Data Protection Law are respected, and (e)  any other information that allows Data Controller to make an informed decision and to comply with its obligations under the applicable Data Protection Laws.

2.4. In the course of providing the Services to the Data Controller, the Supplier shall without undue delay notify the Data Controller if the AI system materially adversely impacts the Data Subjects in an unforeseen manner and shall 1) identify all the known and foreseeable risks associated with such impact and take all the appropriate steps and measures to cure, prevent or substantially minimise those risks 2) keep the Data Controller updated on the mitigation steps to be taken and their expected completion date; and 3) suspend the uses of the AI System or the specific function of the impacted AI Systems until those risks are cured, unless otherwise agreed in written with the Data Controller.