Documents
Publisher Agreement
Publisher Agreement
Effective Date: August 8, 2024
Welcome Writers!
TO REQUEST A COPY OF THIS PUBLISHER AGREEMENT, PLEASE SEND AN EMAIL TO PRIVACY@SUBSTACKINC.COM
Welcome to Substack! We’re thrilled that you’ve chosen to publish with us.
This Publisher Agreement (“Agreement”) is a binding contract between you and Substack Inc. (“we”, “us”, “our”). It contains the rules and restrictions that govern your use of Substack’s products and services (referred to below simply as “Substack”) to publish and distribute content to the web and to a list of subscribers that you control. If you use Substack for this purpose, you are a Creator. In this Agreement, we refer to people that subscribe to your publications Readers.
Using Substack in any way means that you agree to this Agreement, and this Agreement will remain in effect while you use Substack. This Agreement includes everything in this document, as well as those in the Terms of Use, Privacy Policy, Content Guidelines, Copyright Dispute Policy, and all other rules and procedures that may be published from time to time by us on Substack. In the event of any conflict between this Agreement and any other terms and conditions you have agreed to with Substack, this Agreement will prevail with respect to its subject matter.
You must be of legal age to form a binding contract to use Substack. You may not and must not use Substack if you are under 16 years old.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children. We do not knowingly collect or solicit personally identifiable information from children under 16; if you are a child under 16, please do not attempt to register for Substack or send any personal information about yourself to us.
If we learn we have collected personal information from a child under 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us personal information, please contact us at tos@substackinc.com.
If you’re agreeing to this Agreement on behalf of an organization or entity, you must be authorized to agree to this Agreement on that organization or entity’s behalf and bind them to this Agreement (in which case, the references to “you” and “your” throughout this document refer to that organization or entity).
If you don’t agree to all of the following, you may not use or access Substack in any manner. If you have any questions, comments, or concerns regarding the Agreement or our products and services, please contact us at tos@substackinc.com.
Ownership
First and foremost, you own what you create. Any original content you post, upload, share, store, or otherwise provide to Substack remains yours and is protected by copyright and any other applicable intellectual property laws.
However, please note that you agree to grant us a limited license to your content in order to enable us to operate Substack. This license allows us to promote your content and help you succeed on Substack.
You agree that this limited license includes a worldwide, nonexclusive, sublicensable, royalty-free, fully paid-up, transferable right (a) to market your publications and to permit others to use, access, and download your publications through Substack, and (b) to use your tradename(s), trademark(s), and logo(s) in connection with the distribution and marketing of publications. For further details, please see “Posting Content on Substack” in the Terms of Use, which is incorporated into this Agreement by reference.
Pricing and Payments
You may offer your publications for free, or for a subscription fee, to be determined at your discretion. You may set and change the prices for your publication at your discretion through your Creator account, though no price changes will apply retroactively.
If you choose to charge a subscription fee for your publication, you agree to the following:
No Circumvention: You agree to process payments from Readers only in the manner determined by us. This includes using the third-party payment processing platform (“Payment Processor”) we choose, and following any other rules we specify. You may not circumvent your payment obligations to us by soliciting payment from a Reader outside of Substack or by using any alternative method to collect subscription payments. This includes receiving payments for your publication through links to PayPal or a separate Patreon page. You agree to notify us immediately if you receive any such offer or solicitation to circumvent your payment obligations by contacting tos@substackinc.com.
Taxes: You agree that you shall bear and be responsible for any and all applicable federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including without limitation, sales, use, and value added taxes) related to your publication.
Revenue Share: You agree to pay us a percentage of the total amount charged by you to Readers (the “Revenue Share”). The remaining amount, after any fees deducted by the Payment Processor, will be retained by you. The Revenue Share percentage is set between you and Substack during registration of your account.
Revenue Share Payment: During the term of this Agreement, the Payment Processor will pay the Revenue Share owed to us and deduct any applicable fees on a rolling basis as you process subscription payments from Readers. You agree to these payments and further agree that all Revenue Share payments are non-refundable.
Information Upon Request: You will provide us with all requested data or information about you and your publications. This includes all payment and tax identification information, and you will ensure this information is accurate and up-to-date.
Relationships with Readers
You agree to the following rules around your relationships with Readers and other users of Substack:
Sole Responsibility: You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any publications you distribute through Substack and for the consequences of your actions by doing so. This means that you acknowledge and agree that you are solely responsible for ensuring distribution of your publications, our actions under this Agreement are solely to assist you in facilitating distribution.
Stopping Publication or Deleting a Publication: You may delete one or more of your publications from Substack at your discretion. However, please note that if you delete or stop publishing a publication before the end of a paid subscription term of a Reader, any and all obligations – including any refund obligations for the remaining portion of the subscription term – are solely your responsibility. We are under no obligation to issue any refunds to you or your Readers and we are entitled to keep any and all portions of any Revenue Share you have paid Substack.
Disputes: If there is a dispute between you and a user about payments or any other issue, you agree we are under no obligation to become involved and that we will not be held liable for any such dispute. We are not liable for your relationship with users, and we won’t provide you with any legal advice regarding such matters.
Reporting a User: You can flag that a user that is violating our Terms of Use by sending an email to tos@substackinc.com. After you provide us with written notice of this violation, we will determine whether this user’s access to some or all of your publications should be suspended or terminated. We will also decide at our sole discretion whether this user’s access to the rest of Substack will be suspended or terminated.
Support: You shall provide to us a current email address to which we may direct inquiries from Readers and other Substack users regarding your publications.
Acceptable Use
You are responsible for all your activity in connection with Substack!
Make sure that you use Substack in a manner that complies with the law and is permitted by this Agreement. If your use of Substack is prohibited by applicable laws, then you aren’t authorized to use Substack. We can’t and won’t be responsible for you using Substack in a way that breaks the law.
You also represent and warrant that you will not publish publications or otherwise use Substack in a manner that:
is fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, or in any way violates Substack’s Content Guidelines;
interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of Substack or any third party;
infringes, violates, or misappropriates any law, statute, ordinance or regulation or rights of any third party;
spreads a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program.
Please review the “Acceptable Use Policy” detailed in the Terms of Use, as those rules are also incorporated into this Agreement by reference.
Limitation of Liability
To the fullest extent allowed by applicable law, under no circumstances and under no legal theory shall Substack, its licensors, or its suppliers be liable to you or to any other person for:
Any indirect, special, incidental, or consequential damages of any kind, or
Any amount, in the aggregate, in excess of the greater of (1) $100 or (2) the amounts paid and/or payable by you to us in connection with Substack in the twelve-month period preceding the applicable claim.
No Warranties
Substack is provided to you on an “as-is” basis. This means we provide it to you without any express or implied warranties of any kind. That includes any implied warranties of merchantability, warranties of fitness for a particular purpose, non-infringement, or any warranty that the use of Substack will be uninterrupted or error-free.
Privacy
Substack takes privacy very seriously and is committed to processing your personally identifiable information (“Personal Information”) and that of other Substack users in accordance with applicable privacy and data protection legislation. For more information on how we process Personal Information please see our current Substack Privacy Policy.
Consistent with our own Privacy Policy, we may collect certain data on how Readers engage with Creator content. We will share, at our sole discretion, some of this information with you, including pageviews, open rates, Reader counts, and referral data. You agree that Substack is under no obligation to share this data with you.
Please note that our Privacy Policy only applies to the processing of Personal Information by Substack as a data controller, meaning whenever we process Personal Information for our own purposes. Where Substack processes Personal Information on behalf of you as a Creator, Substack qualifies as a data processor and you qualify as a data controller for the purposes of applicable data protection law that uses these terms.
In that case the following terms apply to such data processing:
Each party shall comply with their respective statutory or regulatory data protection obligations.
Substack shall process Personal Information in accordance with your instructions. Substack shall have no liability whatsoever for violations of privacy and data protection laws that arise as a result of Substack following your instructions under the Agreement.
If you collect, use, store or otherwise process Personal Information provided by or collected from Substack users, you must do so securely and only for as long as it is needed and always in accordance with applicable privacy and data protection laws.
You are solely responsible for complying with any laws and regulations that apply to your processing of Personal Information on the Substack platform. if appropriate.
You shall ensure that all Personal Information that you supply or disclose to Substack has been obtained fairly and lawfully and that you have obtained all necessary consents and/or privacy notices required to permit Substack to fulfil its obligations under this Agreement.
If you are based in the European Economic Area (“EEA”) or the United Kingdom (“UK”), the processing of Personal Information by Substack on your behalf shall be governed by the terms of the data processing addendum attached to this Publisher Agreement as Annex 1.
If you are a business for the purposes of the California Consumer Privacy Act of 2018 (“CCPA”), you may elect to have us act as your CCPA service provider. Contact us at privacy@substackinc.com to receive a copy of our service provider agreement.
To the fullest extent allowed by applicable law, you agree to indemnify and hold Substack, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims (including but not limited to fines or other sanctions imposed by data protection authorities) for any violations of this Publisher Agreement or applicable privacy and data protection laws attributable to you.
Subprocessors
Due to the nature of Substack’s business and the volume of users, our business needs and sub-processors may change from time to time. For example, we may need to remove a sub-processor to consolidate and minimize our use of sub-processors. Similarly, we may add a sub-processor if we believe, at our discretion, that doing so will improve our ability to deliver our services.
We will periodically update our sub-processors, as provided under Annex III, to reflect additions and removals to our list of our sub-processors. To receive email notifications of updates, as provided under Annex III, please contact Privacy@substackinc.com.
Under the terms of our Data Processing Agreement (DPA), a Creator may reasonably object in writing to the processing of its personal data by a new sub-processor within 30 days following the update of this page. If a Creator does not object during the 30-day time period, the appointment of the new sub-processor shall be deemed accepted by the Creator
Terminating Your Account
Either party may terminate this Agreement at any time for any reason. Upon such termination of this Agreement, your right to use Substack will immediately cease.
We may terminate this Agreement or terminate, suspend, or restrict your access to or use of Substack at any time, for any reason. Reasons that may lead to us terminating or restricting access to Substack include a breach of any of the terms or conditions of this Agreement, your offensive or unacceptable behavior, objectionable material, or any other actions in violation of guidelines we specify. We will notify Creators as soon as reasonably practicable if Creators’ access to Substack is suspended or substantially limited due to technical problems with the platform.
You agree that this means that publications (or any content therein) may be removed from Substack at any time in our discretion. You also agree that we retain the right to immediately halt the distribution of publications at our discretion.
Changes to this Agreement
We are constantly trying to improve our products and services, so this Agreement may need to change along with Substack. We reserve the right to change the Agreement at any time, but if we do, we will bring it to your attention by placing a notice on the website, by sending you an email, and/or by some other means.
If you don’t agree with the new Agreement, you are free to reject them; unfortunately, that means you will no longer be able to use Substack. If you use Substack in any way after a change to the Agreement is effective and notice has been provided, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and us.
Miscellaneous Terms
The above covers most of the questions that we typically receive about Substack. We have grouped provisions that come up less frequently below:
Indemnification: To the fullest extent allowed by applicable law, you agree to indemnify and hold Substack, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of Substack (including any actions taken by a third party using your account), and (b) your violation of this Agreement. In the event of such a claim, suit, or action, we will attempt to provide notice to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment: You may not assign, delegate or transfer this Agreement or your rights or obligations hereunder, or your Substack account, in any way (by operation of law or otherwise) without our prior written consent. We may transfer, assign, or delegate this Agreement and our rights and obligations without consent.
Choice of Law: This Agreement is governed by and will be construed under applicable federal law and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration: This Agreement will be construed under the laws of the State of California, without regard to conflicts of law provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys’ fees.
No Third-Party Beneficiaries: We agree there are no third-party beneficiaries intended under this Agreement.
No Joint Venture: You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Substack Inc., and you do not have any authority of any kind to bind us in any respect whatsoever.
Waiver: The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.
Severability: If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that this Agreement shall otherwise remain in full force and effect and enforceable.
Survival: You agree that the terms under the heading “Privacy”, “Sole Responsibility”, “Acceptable Use”, “Indemnification”, “Stopping Publication or Deleting a Publication”, “No Warranty”, “Limitation of Liability”, “Assignment”, “No Joint Venture”, “Severability”, “Arbitration”, and “Entire Agreement”, and any payment obligations incurred shall survive termination of this Agreement.
Entire Agreement: You agree that this Agreement is the complete and exclusive statement of the mutual understanding between you and us, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
ANNEX 1
Data processing addendum (DPA)
This data processing addendum (“DPA”) forms part of the Publisher Agreement and is entered into between Substack (as data processor) and the Creator (as data controller).
The terms of this DPA only apply if the Creator is based in the European Economic Area (“EEA’), in the United Kingdom (“UK”); or where, in the course of providing services to the Creator under the Publisher Agreement, Substack processes personal data on behalf of the Creator within the meaning of Articles 4(2) and 28 of the EU General Data Protection Regulation (“GDPR”) or its UK equivalent.
Additional Definitions. For the purpose of this DPA the terms “personal data”, "processing", “data subject”, "controller" and "processor" have the meanings given to them in the GDPR or applicable data protection laws to which the Personal Information may be subject to the extent that such concepts exist in such laws.
“EU Standard Contractual Clauses” or “EU SCCs” shall mean the standard contractual clauses for the transfer of personal data to third countries pursuant to the GDPR, adopted by the European Commission under Commission Implementing Decision (EU) 2021/914, including the text from module two ; .
“Standard Contractual Clauses” or “SCCs” means the EU Standard Contractual Clauses and/or the UK Standard Contractual Clauses (as applicable and consistent with the clarifying terms agreed by the Parties and set forth herein).
“UK Standard Contractual Clauses” (“UK SCCs”) means, collectively, the EU SCCs, consistent with the clarifications set forth herein, and the UK’s International Data Transfer Addendum (“UK Addendum”), attached as Annex 4 to the SCCs.
Creator obligations. The Creator:
acknowledges that Substack, Substack affiliates and their respective third party service providers may process personal data in connection with the provision of Substack products and services to the Creator (the “Services”). A description of the processing activities performed in connection with the Services in provided in Appendix 1 to this DPA;
is solely responsible for compliance with the applicable data protection laws, including, but not limited to, the lawfulness of disclosing personal data to Substack and the lawfulness of having personal data processed on behalf of Creator; and
ensures its instructions for processing personal data comply with the applicable data protection laws and the Creator shall have sole responsibility for the accuracy, quality and legality of the personal data and the means by which the Creator acquired the personal data.
Substack obligations. Substack agrees:
to process the personal data for the performance of the Services only in accordance with the documented instructions from the Creator as set out in the Publisher Agreement, this DPA or through the settings in the Services, and, without any obligation to perform a legal examination, that it will notify the Creator if Substack considers any such processing of personal data to be in violation of any applicable data protection laws;
to process the personal data only to the extent, and in such manner, as it is necessary for the provision of the Services;
that if it is legally required to process personal data otherwise than as instructed by the Creator, it will notify the Creator before such processing occurs unless prohibited from doing so by law;
to ensure that access to the personal data is limited to those personnel who require such access, and such are bound by, and made aware of, their obligations of confidentiality with respect to protecting personal data; to use its commercially reasonable efforts to provide assistance to the Creator upon request and only where the Creator cannot do so without Substack’s assistance (i) in fulfilling data subjects’ requests for access, rectification, erasure, data portability or objection, and (ii) in fulfilling its obligations under the applicable data protection laws.
to make available information and allowing for and contributing to audits, including inspections and information requests, conducted by the Creator or an auditor mandated by the Creator upon reasonable written notice and during regular business hours, and in each case with all Substack’s costs and expenses incurred being met by the Creator and only always limited to what is necessary to demonstrate compliance with applicable data protection laws;
taking into account the state of the art and the costs of implementation, to implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk to personal data or data subjects, which shall include protecting personal data against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access (“Personal Data Breach”). Appendix 2 to this DPA contains a description of these measures and safeguards. Creator understands and agrees that these measures are subject to technical progress and development and Substack is therefore expressly allowed to implement adequate alternative measures; and
without undue delay notify the Creator in writing of any Personal Data Breach and keep the Creator informed of related developments. The Creator is solely responsible for complying with any notification obligations applicable to the Creator. The performance of Substack's obligation to report or respond to a Personal Data Breach under this article is not an acknowledgement by Substack of any fault or liability with regard to the Personal Data Breach.
Use of sub-processors. The Creator agrees that:
Substack may use sub-processors to provide certain parts of the Services on Substack's behalf. The Creator hereby gives a general written authorization to Substack to engage any sub-processor for the processing of personal data.
any sub-processors that are engaged by Substack for the provision of the Services shall be subject to written sub-processor terms with Substack requiring that the sub-processor abides by terms no less protective than this DPA.
Substack currently uses the sub-processors included in Appendix 1 to this DPA. Substack may remove or appoint other suitable and reliable sub-processors at its own discretion in accordance with this article. Substack will give at least 6 weeks prior notice of any changes to the list of sub-processors. The Creator can object to a sub-processor by using its termination rights under the Agreement. If the Creator does not terminate the Agreement within this timeframe, the Creator is deemed to have accepted the respective sub-processor.
where the sub-processor fails to fulfill its data protection obligations, Substack shall remain similarly liable to the Creator for the performance of its obligations under this DPA.
Data transfers from the EEA. The Creator understands and agrees that:
Substack is based outside of the EEA in the US and that personal data may be transferred to the US or to other countries outside of the EEA provided that the specific conditions for such data transfers in applicable laws have been fulfilled.
Where applicable data protection laws require appropriate safeguards for a transfer of personal data to a third country, and in case no adequacy decision or any other appropriate data transfer mechanism applies, Substack shall enter into SCCs as further specified in Appendix 3 to this DPA. The Creator hereby expressly authorizes Substack to enter into SCCs (also) on its behalf and commissions Substack to enforce these SCCs on the Creator’s behalf where appropriate.
Nothing in this DPA will be construed to prevail over any conflicting clause of any SCCs that have been entered into by Substack and for the prevention of doubt nothing in this DPA varies or modifies the SCCs nor affects any supervisory authority’s or data subject’s rights under the SCCs.
Deletion or return of personal data. On termination of the Publisher Agreement Substack will cease all processing of the personal data on behalf of the Creator and will as soon as possible delete the personal data or, if reasonably practicable to do so, return the personal data unless Substack is subject to a legal requirement to store the personal data. Substack has no liability or further obligation to the Creator with respect to the deletion of personal data as described in this section.
Miscellaneous
This DPA shall automatically terminate upon any termination or expiration of the Publisher Agreement. If there is any conflict between any provision of this DPA and any provision of the Publisher Agreement or the Terms of Use, this DPA shall prevail. If there is a conflict between this DPA and the SCCs the SCCs shall prevail.
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APPENDIX 3 TO THE DPA
STANDARD CONTRACTUAL CLAUSES
MODULE TWO: TRANSFER 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 personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
[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.
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), (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
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 6 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.
(a) 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 fulfills 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.
(b) 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.
(c) 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.
(d) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) [Where the data exporter is 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.
[3] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
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 ([4]);
(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.
[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.
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 minimization
(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
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third- party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.]
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 the Netherlands.
(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.
APPENDIX
EXPLANATORY NOTE:
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
ANNEX I
A. LIST OF PARTIES
See the Parties listed in the DPA.
B. DESCRIPTION OF TRANSFER
See Appendix 1 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
The Dutch data protection authority (Autoriteit Persoonsgegevens)
ANNEX II
Please see Appendix 2 to the DPA
ANNEX III
LIST OF SUB-PROCESSORS
Please see Appendix 3 to the DPA
ANNEX IV
INTERNATIONAL DATA TRANSFER ADDENDUM TO THE EU COMMISSION STANDARD CONTRACTUAL CLAUSES (“UK ADDENDUM”)
(VERSION B1.0, in force 21 March 2022)
This Addendum is applicable if, when and to the extent a transfer of personal data as specified in Annex I.B. is, either solely or in combination with Regulation (EU) 2016/679, governed by the United Kingdom Data Protection Act 2018 (“UK GDPR”).
This Addendum has been issued by the 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.
Part 1: Tables
Table 1: Parties
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Table 2: Selected SCCs, Modules and Selected Clauses
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Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
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Table 4: Ending this Addendum when the Approved Addendum Changes
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Part 2: Mandatory Clauses
Entering into this Addendum
1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2. Although Annex 1.A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
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1. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.
2. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
3. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
4. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
5. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
Hierarchy
6. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
7. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
8. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
Incorporation of and changes to the EU SCCs
9. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
b. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
c. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
10. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
11. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
12. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
a. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
b. In Clause 2, delete the words:
“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”;
c. Clause 6 (Description of the transfer(s)) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
d. Clause 8.7(i) of Module 1 is replaced with:
“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
e. Clause 8.8(i) of Modules 2 and 3 is replaced with:
“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
f. References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
g. References to Regulation (EU) 2018/1725 are removed;
h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
j. Clause 13(a) and Part C of Annex I are not used;
k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
l. In Clause 16(e), subsection (i) is replaced with:
“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
m. Clause 17 is replaced with:
“These Clauses are governed by the laws of England and Wales.”;
n. Clause 18 is replaced with:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to this Addendum
13. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
14. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
15. From time to time, the ICO may issue a revised Approved Addendum which:
a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
b. reflects changes to UK Data Protection Laws;
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
16. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
a its direct costs of performing its obligations under the Addendum; and/or
b its risk under the Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
17. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.
