CHOOZLE U.S. DATA PROCESSING AGREEMENT
This data processing agreement (”Agreement”) forms part of the main agreement(s) between ___ (“Company”) and Choozle, Inc. (“Provider”) (each individually a Party and collectively the “Parties”) and all further agreements executed under it (collectively, the “Main Agreement(s)”) pursuant to which Provider provides services to Company. This Agreement is effective as of (1) the execution date of the Main Agreement if incorporated as an exhibit thereto; or (2) the date last signed if executed as an amendment to or otherwise separately from the Main Agreement.
Data Processing Terms
1. Roles of Parties: The Parties acknowledge and agree that Provider is considered a Service Provider under the Agreement.
2. Compliance With Law: Provider shall at all times comply with Company’s written instructions pursuant to the Main Agreement(s) and all applicable laws, rules and regulations, including but not limited to, all applicable Data Protection Law.
3. Data Security: The Provider will implement appropriate technical and organizational measures designed to safeguard Personal Data against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display or distribution, and against accidental loss, destruction or damage. The Provider must document those measures in writing and periodically review them to ensure they remain current and complete, at least annually.
4. Data Retention and Deletion: Provider shall retain Company Personal Data for only so long as necessary to perform its obligations under the Main Agreement(s), unless otherwise required under applicable laws. Upon termination or expiration of the Main Agreement(s) or earlier as requested by Company, Provider shall destroy or return to Company (at Company’s election) all Company Personal Data in its possession, custody and control, except for such Personal Data as must be retained under applicable law (which Provider shall destroy once it is no longer required under applicable law to retain).
5. Data Security Incidents: Provider shall notify Company within seventy-two (72) hours of discovery of an unauthorized access to, acquisition or disclosure of Company Personal Data, or other breach of security with respect to Company Personal Data in Provider’s or its representatives’ control or possession (a “Data Security Incident”). If a Data Security Incident requires notice to any regulator, data subject or other third party, Company shall have sole control over the content, timing and method of distribution of any needed notice, unless otherwise required by applicable law.
6. Data Subject Rights: If Provider receives a request from a Company Data Subject relating to their Company Personal Data, Provider shall immediately forward the request to Company and provide all reasonable cooperation necessary for Company to fulfill the Company Data Subject’s request in compliance with applicable laws.
7. Termination and Survival: This Agreement and all provisions herein shall survive so long as, and to the extent that, Provider Processes or retains Company Personal Data.
8. Conflicts: In case of contradictions between this Agreement and the provisions of the Main Agreement, the provisions of this Agreement shall prevail.
9. Applicable law and jurisdiction: The applicable law and jurisdiction as set forth in the Main Agreement apply to this Agreement.
CHOOZLE GLOBAL DATA PROCESSING AGREEMEN
Choozle Global Data Processing Addendum
This Data Processing Addendum (“Addendum”), effective as of the date of the last
signature below (“Effective Date”), forms part of the Master Services Agreement, or such other
agreement governing the direct relationship between the Parties hereto (collectively, the
“Agreement”), and is entered into by and between ___ (“Company”) and Choozle, Inc., with its
principal place of business at 1125 17th St #1000, Denver, CO 80202 (“Choozle”) (each
individually a Party and collectively the “Parties”).
1. Definitions. In addition to capitalized terms defined elsewhere in this DPA, the following
terms shall have the meanings ascribed to them herein.
1.1. “Adequacy decision,” “data importer,” “data exporter,” “Process”
“Processing” and “Sub-Processor,” and “Supervisory Authority” shall each
have the meaning ascribed to it under Data Protection Law.
1.2. “Affiliate” means any entity that directly or indirectly controls, is
controlled by, or is under common control with the subject entity.
1.3. “Business” and “Controller” shall have the meanings ascribed to in Data
Protection Law and shall be used interchangeably herein.
1.4. “Consumer” and “Data Subject” shall have the meanings ascribed to in
Data Protection Law and shall be used interchangeably herein.
1.5. “Covered Data” means the data provided by Data Provider to Data
Receiver as detailed in the Agreement and for the purposes described in the
Agreement.
1.6. "Data Protection Laws" means all applicable laws and regulations
applicable, including, as applicable, laws and regulations of the European Union
(“EU”), the European Economic Area (“EEA”) and their member states,
Switzerland and the United Kingdom (“UK”), including without limitation,
Regulation 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” or “GDPR”) and EU Directive 2002/58/EC on Privacy
and Electronic Communications (“e-Privacy Directive”) or, the superseding e-
Privacy Regulation once effective, and the United Kingdom’s General Data
Protection Regulation (“UK GDPR”), and as applicable, the laws and regulations
of the United States, including without limitation, the California Consumer Privacy
Act of 2018 and its amendments including the California Privacy Rights Act
(collectively, the “CCPA”), and Virginia’s Consumer Data Protection Act
(“VCDPA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act
(“CTDPA”), the Utah Consumer Privacy Act (“UCPA”), and the Oregon
Consumer Privacy Act (“OCPA”). “Data Provider” means the Party providing
Covered Data to the other Party as part of the Services.
1.7. “Data Receiver” means the Party receiving Covered Data as part of the
Services from the Data Provider.
1.8. “Member States” means a member of the EU.
1.9. “Personal Data” and “Personal Information” shall have the meanings
ascribed in Data Protection Laws and shall be used interchangeably herein.
1.10. “Processor” and “Service Provider” shall have the meanings ascribed to
it in Data Protection Law and shall be used interchangeably herein.
1.11. “Services” shall have the meaning ascribed to it in the Agreement.
2. Designation. The Parties acknowledge and agree that with regard to the Covered Data,
Company is a Business and a Controller, and that Choozle is a Service Provider and a
Processor.
3. Obligations.
3.1. Compliance with Law. With respect to the Covered Data, the Parties
shall comply with Data Protection Law.
3.2. Limitations on Processing. Service Provider shall at all times comply
with Controller’s written instructions pursuant to the Agreement, this DPA, and all
applicable laws, rules and regulations, including but not limited to, all applicable
Data Protection Law. Service Provider shall only process the Covered Data for
the limited purposes specified in the Agreement.
3.3. CCPA.
3.3.1. To the extent any Covered Data is deemed “Personal Information”
(as such term is defined under the CCPA) and is subject to the CCPA,
Service Provider agrees not to: (a) “sell” or “share” the Personal
Information as such terms are defined under the CCPA; (b) retain, use, or
disclose Personal Information for any purpose other than for the specific
purpose of performing the Services or as otherwise expressly permitted
under the Agreement including retaining, using or disclosing the Personal
Information for a commercial purpose other than the business purposes
specified in this DPA or the Agreement, or as otherwise permitted by the
CCPA; (c) retain, use or disclose the Personal Information outside of the
direct business relationship with Controller; (d) combine Personal
Information it receives from Controller with Personal Information it
receives from or on behalf of another person or collects from its own
interactions with consumers, except where required to provide the
Service provided it is permitted under the CCPA.
3.3.2. For the avoidance of doubt, any Personal Information that: (i)
Controller uploads directly to the Service, (ii) is received to the Service
directly through Controller‘s implementation, configuration, and/or use of
the Developer Tools or (iii) Controller directs or instructs its partner (e.g.
through configuration of the Services) to send to or share with Service
Provider for Processing on Controller’s behalf for the purpose of providing
the Services under the Agreement, shall be deemed Controller Personal
Information received from Controller.
3.3.3. Business Purposes. In accordance with the CCPA, Service
Provider may engage in the following Business Purposes:
3.3.3.1. Auditing consumer transactions, including, but not limited
to, measuring advertising performance to unique visitors.
3.3.3.2. Detecting and protecting against malicious, deceptive,
fraudulent, or illegal advertising activity.
3.3.3.3. Identifying and repairing errors that impair existing
intended functionality.
3.3.3.4. Short-term, transient use, provided that the personal
information is not disclosed to another third party and is not used
to build a profile about a consumer.
3.3.3.5. Providing analytic, advertising, or marketing-related
services.
3.3.3.6. Undertaking internal research for technological
development and demonstration.
3.4. Data Subject Rights. Service Provider shall promptly notify Controller if
Service Provider receives a request from a Data Subject exercising a Data
Subject Request. Upon Controller’s request, Service Provider shall assist
Controller in responding to such Data Subject Requests.
3.5. Security.
3.5.1. Service Provider shall maintain appropriate technical and
organizational measures for protection of the (i) security (including
protection against unauthorized or unlawful Processing and against
accidental or unlawful destruction, loss or alteration or damage,
unauthorized disclosure of, or access to, Personal Data), (ii)
confidentiality of personal data and (iii) integrity of Personal Data, as set
forth in any written information security policies Controller may provide to
Service Provider, as may be updated by Controller from time to time or
(iv) as otherwise set forth in the Agreement.
3.5.2. The Parties shall take reasonable steps to ensure that access to
the Covered Data is limited on a need to know/access basis and that all
personnel receiving such access are subject to confidentiality
undertakings or professional or statutory obligations of confidentiality in
connection with their access/use of Covered Data.
3.6. Security Breach or other Non-Compliance. Service Provider shall
notify Controller without undue delay (and, in any event, within seventy two (72)
hours) upon Service Provider or any sub-processor of Service Provider becoming
aware of (i) a breach of security measures leading to any actual or reasonably
suspected unauthorized, accidental or unlawful (a) use, destruction, loss, or
unauthorized disclosure, of, or (b) alteration or access to, Personal Data; (ii) any
security breach (or substantially similar term) as defined by applicable Data
Protection Law; or any incident that impacts the Processing of Personal Data
including (i) a Data Subject Request, (ii) an investigation into or seizure of the
Personal Data by government officials, or a specific indication that such an
investigation or seizure is imminent, or (iii) where, in the opinion of Service
Provider, implementing an instruction received from Controller would violate the
applicable Data Protection Law to which Controller or Service Provider are
subject. Service Provider shall include in such notification sufficient information to
allow Controller to meet any obligations to report or inform Data Subjects or any
government regulators or other independent public authorities of the security
breach under the Data Protection Law.
4. Cross-Border Transfers. If the Services involves the transfer of Personal Data of Data
Subjects in the EEA or the UK, to a country or territory outside of those regions which
has not received an applicable adequacy decision, the Parties hereby incorporate, and
agree to comply with, the Standard Contractual Clauses set out by the European
Commission Decision 2021/914/EU and approved for use in data transfers under the UK
GDPR, located at https://eur-
lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX%3A32021D0914&locale=en#ntc12-
L_2021199EN.01003701-E0012 and attached hereto as Exhibit A (the “SCCs”) . In such
case: (1) The Parties will complete Annexes IA, IB, IC, AND II of this DPA; and (2) The
Parties represent that they do not believe the laws and practices in any country to which
Personal Data is transferred for purposes of the Agreement will prevent the importing
Party from fulfilling its obligations under this DPA or the SCCs. By entering into this DPA,
the Parties are deemed to have signed the EU SCCs incorporated herein, including their
Annexes.
4.1. Ex-EEA Transfers. The Parties agree that the transfer of Personal Data,
outside the EEA that is not governed by an adequacy decision made by the
European Commission in accordance with the relevant provisions of the GDPR
will be made pursuant to the EU SCCs, which are deemed entered into (and
incorporated this DPA by this reference) and completed as follows:
4.1.1. Module 2 shall apply;
4.1.2. The optional docking clause in Clause 7 does/does not apply;
4.1.3. In Clause 9, Option 2 (general written authorization) applies, and
the minimum time period for prior notice of sub-processor changes shall
be ten (10) days;
4.1.4. In Clause 11, the optional language does not apply;
4.1.5. All square brackets in Clause 13 are hereby removed;
4.1.6. In Clause 17 (Option 1), the EU SCCs will be governed by the
laws of the member state of the Data Exporter;
4.1.7. In Clause 18(b), disputes will be resolved before the courts of
member state of the Data Exporter;
4.1.8. Annex I of the EU SCCs shall be deemed completed with the
information set out in Annex IA, Annex IB, and Annex IC attached
hereto;
4.1.9. Annex II of the EU SCCs shall be deemed completed with the
information set out in Annex II attached hereto; and
4.2. Ex-UK Transfers. The Parties agree that transfer of Personal Data of UK
Data Subject outside the UK, and such transfer is not governed by an adequacy
decision made by the Secretary of State in accordance with the relevant
provisions of the UK GDPR and the Data Protection Act 2018 are made pursuant
to the SCCs as well as the International Data Transfer Addendum to the
European Commission’s Standard Contractual Clauses for International Data
Transfers located at https://ico.org.uk/for-organisations/guide-to-data-
protection/guide-to-the-general-data-protection-regulation-gdpr/international-
data-transfer-agreement-and-guidance/ and attached hereto as Exhibit B (the
“IDTA”). The IDTA is hereby incorporated by reference.
4.2.1. The Parties shall complete Annex IV of this DPA.
4.2.2. ‘Part I: Tables’ of the IDTA shall be deemed completed with the
information set out in Annex III attached hereto.
5. Data Protection Impact Assessment and Prior Consultation. Service Provider shall
provide reasonable assistance to Controller with any data protection impact
assessments, audits, certifications, or prior consultations with legal or regulatory
authorities or other competent data protection authorities, which Controller reasonably
considers to be appropriate or required under any Data Protection Laws, in relation to
Processing of Personal Data by Service Provider.
6. Return or Deletion of Personal Data. Upon the expiration or termination of the
Agreement, Service PRovider shall, at Controller’s request either (i) securely return to
Controller, or (ii) securely destroy, all Personal Data obtained by Service Provider in
connection with the Agreement. Service Provider will provide written confirmation to
Controller of its compliance with this provision.
7. General Terms
7.1. Termination and Survival. This DPA and all provisions herein shall so
long as the Agreement is in effect.
7.2. Counterparts. This DPA may be executed in any number of counterparts
and any Party (including any duly authorized representative of a Party) may enter
into this DPA by executing a counterpart.
7.3. Non-compliance: Each Party shall promptly inform the other if it is
unable to comply with this DPA. If the non-complying Part cannot comply within a
reasonable period of time, or is in substantial or persistent breach of this DPA,
the complying Party shall be entitled to remediate the non-compliant action
and/or terminate the DPA and the Agreement insofar as it concerns processing
of Covered Data.
7.4. Ineffective clause. If individual provisions of this DPA are or become
ineffective, the effectiveness of the remaining provisions shall not be affected.
The Parties shall replace the ineffective clause with a legally allowed clause,
which will accomplish the intended commercial intention as closely as possible.
7.5. Conflicts. In case of contradictions between this DPA and the provisions
of the Agreement, the provisions of this DPA shall prevail.
7.6. Applicable law and jurisdiction. The applicable law and jurisdiction as
set forth in the Agreement apply to this DPA.
IN WITNESS WHEREOF, this DPA is entered into and becomes a binding part of the
Agreement with effect from the later date set out below.
EXHIBIT A: STANDARD CONTRACTUAL CLAUSES
Module 2 – Controller to Processor
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 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
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, 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.
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), (d) and (e);
(iii) Clause 9(a), (c), (d) and (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(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 ( 2 ) (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.
2 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.
Clause 9
Use of sub-processors
(a) OPTION 1: SPECIFIC PRIOR AUTHORISATION The data importer shall not
sub-contract any of its processing activities performed on behalf of the data exporter
under these Clauses to a sub-processor without the data exporter’s prior specific written
authorisation. The data importer shall submit the request for specific authorisation at least
[Specify time period] prior to the engagement of the sub-processor, together with the
information necessary to enable the data exporter to decide on the authorisation. The list
of sub-processors already authorised by the data exporter can be found in Annex III. The
Parties shall keep Annex III up to date.
OPTION 2: GENERAL WRITTEN AUTHORISATION 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 [Specify time period] 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. ( 3 ) 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.
3 This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in
accordance with Clause 7.
(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.
[OPTION: The data importer agrees that data subjects may also lodge a complaint with
an independent dispute resolution body ( 4 ) at no cost to the data subject. It shall inform
the data subjects, in the manner set out in paragraph (a), of such redress mechanism and
that they are not required to use it, or follow a particular sequence in seeking redress.]
(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.
4 The data importer may offer independent dispute resolution through an arbitration body only if it is established in a
country that has ratified the New York Convention on Enforcement of Arbitration Awards.
(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 established in an EU Member State:] The supervisory
authority with responsibility for ensuring compliance by the data exporter with
Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall
act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the
territorial scope of application of Regulation (EU) 2016/679 in accordance with its
Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation
(EU) 2016/679:] The supervisory authority of the Member State in which the
representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is
established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the
territorial scope of application of Regulation (EU) 2016/679 in accordance with its
Article 3(2) without however having to appoint a representative pursuant to Article 27(2)
of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in
which the data subjects whose personal data is transferred under these Clauses in relation
to the offering of goods or services to them, or whose behaviour is monitored, are
located, as indicated in Annex I.C, shall act as competent supervisory authority.
(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 ( 5 );
(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.
5 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.
(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.
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 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
[OPTION 1: 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 _______ (specify Member State).]
[OPTION 2: These Clauses shall be governed by the law of the EU Member State in which the
data exporter is established. Where such law does 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 law of _______ (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 _____ (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.
ANNEX I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of
its/their data protection officer and/or representative in the European Union]
Name: ___________________________________________
Address: _________________________________________
Contact person’s name, position and contact details: _________________________
___________________________________________________________________
Activities relevant to the data transferred under these Clauses:
___________________________________________________________________
___________________________________________________________________
Signature and date: ___________________________________________________
Role (controller/processor):
2. …
Data importer(s): [Identity and contact details of the data importer(s), including any contact
person with responsibility for data protection]
Name: ___Choozle, Inc.________________________________________
Address: _________________________________________
Contact person’s name, position and contact details: _________________________
___________________________________________________________________
Activities relevant to the data transferred under these Clauses:
___________________________________________________________________
___________________________________________________________________
Signature and date: ___________________________________________________
Role (controller/processor):
2. …
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Categories of personal data transferred
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take
into consideration the nature of the data and the risks involved, such as for instance strict
purpose limitation, access restrictions (including access only for staff having followed
specialised training), keeping a record of access to the data, restrictions for onward transfers or
additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous
basis).
Nature of the processing
Purpose(s) of the data transfer and further processing
The period for which the personal data will be retained, or, if that is not possible, the criteria
used to determine that period
For transfers to (sub-) processors, also specify subject matter, nature and duration of the
processing
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND
ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
EXPLANATORY NOTE:
The technical and organisational measures must be described in specific (and not generic) terms.
See also the general comment on the first page of the Appendix, in particular on the need to
clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organisational measures implemented by the data importer(s)
(including any relevant certifications) to ensure an appropriate level of security, taking into
account the nature, scope, context and purpose of the processing, and the risks for the rights and
freedoms of natural persons.
[Examples of possible measures:
Measures of pseudonymisation and encryption of personal data
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of
processing systems and services
Measures for ensuring the ability to restore the availability and access to personal data in a
timely manner in the event of a physical or technical incident
Processes for regularly testing, assessing and evaluating the effectiveness of technical and
organisational measures in order to ensure the security of the processing
Measures for user identification and authorisation
Measures for the protection of data during transmission
Measures for the protection of data during storage
Measures for ensuring physical security of locations at which personal data are processed
Measures for ensuring events logging
Measures for ensuring system configuration, including default configuration
Measures for internal IT and IT security governance and management
Measures for certification/assurance of processes and products
Measures for ensuring data minimisation
Measures for ensuring data quality
Measures for ensuring limited data retention
Measures for ensuring accountability
Measures for allowing data portability and ensuring erasure]
For transfers to (sub-) processors, also describe the specific technical and organisational
measures to be taken by the (sub-) processor to be able to provide assistance to the controller
and, for transfers from a processor to a sub-processor, to the data exporter