Data Processing Addendum for Brightspot Platform

BRIGHTSPOT

Data Processing Addendum for Brightspot Platform

This Data Processing Addendum (this “DPA” or this “Addendum”) describes Brightspot’s privacy practices with respect to Personal Information we collect in connection with providing our Brightspot Platform and related services (collectively, the “Brightspot Services” or the “Services”).

This DPA is an addendum to, and forms part of, your Brightspot Platform Agreement. Capitalized terms used in this DPA have the meaning set forth herein or have the respective meanings provided in your Brightspot Platform Agreement. In the event of any direct conflicts between the terms of your Brightspot Platform Agreement and the terms of the DPA, the terms of this DPA shall control but solely as applicable to the processing of Personal Information as set forth herein. This DPA shall be effective contemporaneously with the Effective Date of your Brightspot Platform Agreement and shall terminate automatically upon the expiration or termination of your Brightspot Platform Agreement.

While our Services are not designed to collect significant levels of Personal Information, Brightspot does require certain Personal Information from End Users (e.g. name, email address, etc.) in order to register those End Users with the Services and to facilitate their ongoing use of the Services. This DPA applies to that End User Personal Information that Brightspot accesses or receives during the course of performing the Services. With the exception of Personal Information from End Users, please note that Brightspot does not collect any other Personal Information during the course of performing the Services and Customer is not authorized to use the Services to process or store any Personal Information under the Brightspot Platform Agreement, and shall not otherwise provide any Personal Information to Brightspot unless Customer and Brightspot agree in writing (either via an amendment to Customer’s Brightspot Platform Agreement or in a SOW).

The Parties hereby agree as follows:

1.              Definitions. For purposes of this DPA, the following terms shall have the following meanings:

a. “Brightspot”, “Company”, “us”, “we” or similar terms means Perfect Sense Inc., a Delaware corporation d/b/a Brightspot with offices at 12120 Sunset Hills Road, the 6th Floor, Reston, VA 20190.

b. “Brightspot Platform Agreement” means the Brightspot Platform Agreement or other agreement or terms (including any Brightspot online terms of service for the Brightspot Platform) entered into by and between Customer and Brightspot pursuant to which Customer accesses and uses the Brightspot Platform.

c. “Customer” or similar terms means the customer, licensee or counterparty with whom Brightspot has entered into the Brightspot Platform Agreement.

d. “Data Protection Laws” means (a) the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and any applicable laws and/or regulations that implement and/or exercise derogations under it and/or replace or supersede it (including as it forms part of retained EU law as defined in the European Union (Withdrawal) Act 2018) (“GDPR); (b) all applicable data protection and privacy legislation in force from time to time in the UK including (without limitation) the Data Protection Act 2018 (“UK Data Protection Laws”); (c) any other European legislation relating to personal data and all other European legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data; (d) the California Consumer Privacy Act of 2018 (Cal. Civ. Code 1798.100 – 1798.199) (“CCPA) and other data protection or privacy laws applicable to personal information or personal data in the United States; and (e) each of the aforementioned as amended or updated from time to time.

e. “European Economic Area" or “EEA” means the Member States of the European Union together with Switzerland, Iceland, Norway, and Liechtenstein.

f. “Personal Information” means (i) the Personal Information (if and as defined in your Brightspot Platform Agreement) processed by Brightspot on Customer’s behalf in the course of providing the Services to Customer, and (ii) any other data or information that is considered “personal data” as defined by GDPR, “personal information” as defined by CCPA, and other similar terms as defined by applicable Data Protection Laws to the extent that such information is processed by Brightspot on Customer’s behalf in the course of providing the Services to Customer. Personal Information that is subject to GDPR includes the Personal Information described in Annex I to the Standard Contractual Clauses.

g.     The terms “controller”, “data protection impact assessment”, “data subject”, “personal data”, “personal data breach”, “processor”, “processing”, “service provider” and “supervisory authority” shall be as defined under relevant Data Protection Laws.

2.              Processing of Personal Information.

a. General. Brightspot shall comply with its obligations under applicable Data Protection Laws when processing Personal Information. The subject-matter of such processing is providing and making available our Brightspot Platform and related Services to Customer and such processing will continue until Customer’s Brightspot Platform Agreement terminates or expires. Annex I to the Standard Contractual Clauses attached hereto sets out the nature and purpose of the processing, the types of Personal Information we process and the data subjects whose Personal Information is processed.

b. Roles of the Parties. Brightspot and Customer acknowledge that the status of each Party is a question of fact determined under applicable Data Protection Laws. Without limiting the foregoing, Brightspot and Customer agree that in relation to the Personal Information processed under this Addendum, for purposes of the CCPA, Brightspot is a “service provider” and may collect, retain, access, maintain, use, disclose, process and transfer the Personal Information of its Customer and their End Users solely for the purpose of performing the Services, and for no other commercial purpose. For purposes of the CCPA, Customer is a “business”. In such capacity, Customer is primarily responsible for determining the processes and means by which their Personal Information is processed, and for ensuring their processing of Personal Information is compliant with all relevant Data Protection Laws, including the CCPA. For purposes of GDPR, the Parties acknowledge and agree that Brightspot acts as a “Processor” and the Customer act as a “Controller.”

c. Data Processing, Transfers and Sales. Each Customer hereby instructs Brightspot to retain, use, disclose and otherwise process the Personal Information of its End Users for the following purposes, and each Customer shall provide the Personal Information to Brightspot only for the following purposes, and Brightspot shall only retain, use, disclose or otherwise process the Personal Information of End Users for the following purposes: (i) to provide the Services to the Customer in accordance with Customer’s Brightspot Platform Agreement covering those Services; (ii) as otherwise set out in Customer’s Brightspot Platform Agreement and this DPA; and/or (iii) as otherwise agreed upon in writing by the Customer and Brightspot, which Brightspot acknowledges to be instructions for the purposes of this DPA, unless a different manner of processing is required pursuant to any other applicable law to which Brightspot is subject, in which case Brightspot shall, to the extent permitted by applicable law, inform the Customer of that legal requirement before processing that particular Personal Information.

d. Final Agreement. Customer’s Brightspot Platform Agreement and this DPA shall be and are the Customer’s complete and final instructions to Brightspot in relation to the processing of the Personal Information. Processing outside the scope of this DPA and the Brightspot Platform Agreement will require prior written agreement between Customer and Brightspot on additional instructions for such processing. If we reasonably believe any instruction Customer has provided with respect to the processing of Personal Information violates applicable Data Protection Laws, we shall notify Customer.

e. No Commercial Use. Brightspot shall not retain, use, disclose or otherwise process Personal Information for any purpose other than for the specific purposes identified above or as otherwise permitted or required by applicable Data Protection Laws or otherwise pre-approved by Customer in writing. Brightspot does not “sell” (as defined by applicable Data Protection Laws) Personal Information of End Users, which means that Brightspot does not and shall not rent, disclose, transfer, make available or otherwise communicate Personal Information of Customer to any third party for monetary or other valuable consideration. In other words, neither Brightspot, nor any of its nor any of its employees, agents, consultants or assigns shall have any right to process any of Customer’s Personal Information for their own commercial benefit in any form.

f. Aggregated or Anonymized Information. Brightspot may collect, use, retain, access, share, transfer, sell, or disclose information that (i) has been deidentified, anonymized or aggregated consistent with the terms and conditions of applicable Data Protection Laws or (ii) any information that is not Personal Information consistent with the terms of Customer’s Brightspot Platform Agreement. Among other things, this means that Brightspot may share aggregated and/or anonymized information regarding the use or results of the Services with third parties to assist with developing and improving the Services. Without limiting the above, this DPA does not apply to any data related to a Customer’s and its End User’s use of the Services unless it is Personal Information (e.g. this does not apply to Platform analytics, activity logs, use patterns, etc.).

g. Certification. Brightspot hereby certifies that it understands its restrictions and obligations set forth in this Addendum and will comply with them.

3. Required Consents. As the data Controller or business under applicable Data Protection Laws, please note that Customer is responsible for obtaining all necessary consents, and giving all necessary notices, to its End Users related to Brightspot’s processing of Personal Information in connection with the Services, including any consents or notices required by this DPA or your applicable Brightspot Platform Agreement. With this in mind, Customer hereby warrants and represents that: (a) it has provided all applicable notices to its End Users required for the lawful processing of their Personal Information by Brightspot in accordance with the Brightspot Platform Agreement and this DPA; and (b) in respect of any Personal Information collected or processed by Brightspot on behalf of the Customer, it has obtained all necessary consents and rights for the lawful processing of that Personal Information by Brightspot in accordance with the Brightspot Platform Agreement and this DPA.

4. Assistance. Where applicable, taking into account the nature of the processing, and to the extent required under applicable Data Protection Laws, Brightspot shall provide the Customer with any information or assistance reasonably requested or required by the Customer for the purpose of complying with any of the Customer’s obligations under applicable Data Protection Laws, including: (i) using reasonable efforts to assist the Customer by implementing appropriate technical and organizational measures, insofar as this is reasonably possible, for the fulfillment of Customer’s obligation to respond to requests by End Users to exercise rights laid provided by applicable Data Protection Laws, including providing reasonable documentation, product functionality and/or processes to assist Customer in retrieving, deleting or restricting Personal Information; and (ii) providing reasonable assistance to the Customer with any data protection impact assessments and responding to or assisting with any requests from or consultations to any governmental, regulatory or supervisory authorities relevant to Customer, in each case solely in relation to processing of the Personal Data and taking into account the information available to Brightspot.

5. Access RequestsIf Brightspot receives a request submitted by an End User to exercise a right it has under any Data Protection Laws in relation to that Consumer’s Personal Information, it will provide a copy of the request to the Customer. The Customer will be responsible for handling and communicating with the End User in relation to such requests and, to the extent permitted by applicable law, Brightspot shall not respond to the End User.

6. Government RequestsBrightspot shall notify Customer of any request for the disclosure of Personal Information by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.

7. Audits. Provided that Customer has or does enter into a non-disclosure agreement acceptable to Brightspot, Brightspot shall (i) allow Customer and its authorized representatives who are reasonably acceptable to Brightspot (who have also signed a non-disclosure agreement acceptable to Brightspot) to access and review any Brightspot documentation, certifications or other reports or files reasonably required to ensure compliance with the terms of this DPA; or (ii) where required by Data Protection Law or the Standard Contractual Clauses (and in accordance with this Section), allow Customer and its authorized representatives who are reasonably acceptable to Brightspot (who have also signed a non-disclosure agreement acceptable to Brightspot) to conduct reasonable audits (including inspections) during the term of the Brightspot Platform Agreement to ensure compliance with the terms of this DPA.

Notwithstanding the foregoing, any audit must be conducted during our regular business hours, with reasonable advance notice to us (at least 20 business days) and subject to reasonable confidentiality procedures. The scope of any audit shall not require us to disclose to Customer or its authorized representatives, or to allow Customer or its authorized representatives to access: (1) any data or information of any other Brightspot customer; (2) any Brightspot internal accounting or financial information; (3) any Brightspot trade secret; (4) any information that, in our reasonable opinion could: (a) compromise the security of our systems or premises; or (b) cause us to breach our obligations under Data Protection Law or our security, confidentiality and or privacy obligations to any other Brightspot customer or any third party; or (5) any information that Customer or its authorized representatives seek to access for any reason other than the good faith fulfillment of Customer’s obligations under the Data Protection Laws and our compliance with the terms of this DPA.

In addition, audits shall be limited to once per year, unless (x) we have experienced a security breach within the prior twelve (12) months which has impacted your Customer Personal Information; or (y) an audit reveals a material noncompliance. If we decline or are unable to follow your instructions regarding audits permitted under this Section (or the Standard Contractual Clauses, where applicable), Customer may terminate this Addendum and the Brightspot Platform Agreement for convenience.

8. International TransfersBrightspot is located in the USA. Therefore, any Personal Information we collect will be collected and stored in the USA. For End Users that are in the EU, EEA, Switzerland or UK, this means that their Personal Information will be stored in a jurisdiction that offers a level of protection that may, in certain instances, be less protective of their Personal Information than the jurisdiction the End User is typically resident in; provided however that Brightspot adheres to the Standard Contractual Clauses. For this purpose, “Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Information from controllers in the EU to data processors established outside the EU or EEA issued by the European Commission under implementing decision 2021/914 of 4 June 2021 or any subsequent version hereafter released by the European Commission, as amended by this Section 8. A copy of the Standard Contractual Clauses as of the date of this DPA is attached as Exhibit 1 to this Addendum. If and when applicable Data Protection Laws in the EEA require a subsequent or updated version of the Standard Contractual Clauses to replace or supersede those attached hereto as Exhibit 1, then the previous Standard Contractual Clauses then attached hereto as Exhibit 1 shall be deleted and replaced in their entirety with the updated Standard Contractual Clauses without the necessity of any further approval by either party. It is not the intention of either party to contradict or restrict any of the provisions set forth in the Standard Contractual Clauses and, accordingly, in the event of any conflict or inconsistency between the provisions of the Brightspot Platform Agreement (including this DPA) and the Standard Contractual Clauses, the provisions of the Standard Contractual Clauses shall prevail to the extent of such conflict. Notwithstanding the foregoing, the Parties agree that it is their mutual intent for the clarifications to the SCCs set forth below to apply.

The parties agree on the following clarifications in relation to the Standard Contractual Clauses (“SCCs”):

· Pursuant to Clause 9(a) of the SCCs, Customer acknowledges and expressly agrees that Brightspot will appoint and engage new Subprocessors in accordance with Section 9 of this DPA.

· The audits described in Clause 8.9(c) and (d) of the SCC shall be carried out in accordance with Section 7 of this DPA.

· The certification of deletion of Personal Information that is described in Clause 16(d) of the SCC shall be provided by Brightspot to Customer only upon Customer’s request.

· The liability described in Clause 12 of the SCC shall in no event exceed the limitations set forth in the Customer’s Brightspot Platform Agreement, and that under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this DPA, or their affiliates, officers, directors, employees, agents, service providers, suppliers, or licensors be liable to the other party or any third party for any lost profits, lost sales of business, lost data (being data lost in the course of transmission via Customer’s systems or over the Internet through no fault of Brightspot), business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, regardless of whether such party has been advised of the possibility of or could have foreseen such damages. For the avoidance of doubt, this section shall not be construed as limiting the liability of either party with respect to claims brought by data subjects.

· In case of any transfers of Personal Information under this DPA from the United Kingdom to Brightspot, or the onward transfer of personal data subject to the UK Data Protection Laws, to the extent such transfers are subject to the UK Data Protection Laws: (i) general and specific references in the SCCs shall hereby be deemed to have the same meaning as the equivalent reference in the UK Data Protection Laws; (ii) references in the SCC to “the law of the Member State in which the data exporter is established” shall hereby be deemed to mean “the law of the United Kingdom”; and (iii) any other obligation in the SCC determined by the Member State in which Customer is established shall hereby be deemed to refer to an obligation under UK Data Protection Laws. For the avoidance of doubt, the Parties acknowledge and agree that it is their mutual intent for the protections to data subjects described in the Standard Contractual Clauses to apply to residents of the United Kingdom to the extent permitted; provided however that in the event that the Standard Contractual Clauses are determined by competent authority in the United Kingdom to be invalid under UK Data Protection Laws, Brightspot shall, as soon as possible, adopt an appropriate alternative transfer mechanism.

9. Subprocessors.   Brightspot may from time to time use certain subcontractors (i.e., subprocessors) in connection with providing the Services (“Subprocessors”). See our Subprocessor List (https://www.brightspot.com/brightspot-subprocessor-list) for more information regarding the specific Subprocessors we use. For the avoidance of doubt, Customer hereby approves all applicable Subprocessors identified on our Subprocessor List to the extent applicable to the Services received by Customer. We may update our Subprocessor List from time to time and we recommend for each Customer to periodically review the Subprocessor List. By continuing to use our Services after any changes or modifications are made to the Subprocessor List, Customer is deemed to have automatically accepted the updated Subprocessor List. If a Customer (acting reasonably) does not approve of any new Subprocessor added to such list for any reasonable or legitimate reason, they should (i) contact us at privacy@brightspot.com so we can discuss the basis for the Customer’s disapproval and possible alternative Subprocessors, or (ii) object within forty-five (45) days by terminating the Brightspot Platform Agreement for convenience.

Our Subprocessors may have access to Personal Information of End Users to the extent that Brightspot actually receives or collects any such information. Please know that Brightspot carefully selects its Subprocessors based on their security practices and availability levels and we perform due diligence on the technical and organizational security measures of all Subprocessors. We have entered into agreements with each Subprocessor which impose in all material respects the same obligations on the Subprocessor with regard to their processing of Personal Information as are imposed on Brightspot under this DPA and any Brightspot Platform Agreements and which, as applicable, otherwise comply with the requirements of the Data Protection Laws. Brightspot is responsible for the acts and omissions of Subprocessors in relation to Brightspot’s obligations under this DPA and any Brightspot Platform Agreements.

With respect to all Subprocessors having access to Personal Information of End Users that are in the EU, EEA, Switzerland or UK: Customer acknowledges that in order for Brightspot to provide the Services it may be necessary for certain Subprocessors to access or otherwise process the Personal Information outside the EEA, Switzerland or United Kingdom. In those circumstances, Customer will only use Subprocessors that have and maintain certification to the EU-U.S. Privacy Shield (or a successor thereto or comparable privacy shield under other Data Protection Laws) or that comply with the Standard Contractual Clauses (as updated from time to time) or other applicable requirements of the Data Protection Laws.

10. Data Retention and Deletion.  If a Customer wishes to delete any Personal Information processed by the Service, the Customer should send a deletion request to privacy@brightspot.com. Brightspot will strive to respond to all such requests as soon as reasonably practical. If a Customer ceases to subscribe to and use the Services, or Brightspot permanently discontinues or terminates a Customer’s access to the Services, Brightspot will handle all of that Customer’s Personal Information as follows:

i. Subject to subsections (ii) and (iii) below, Brightspot shall, to the greatest extent reasonably possible, within ninety (90) days of the date of termination of the Brightspot Platform Agreement: (1) upon the written request of Customer, return a complete copy of all Personal Information by secure file transfer in such reasonable format as notified by Customer to Brightspot; and (2) delete and use reasonable efforts to procure the deletion of all other copies of Personal Information processed by Brightspot or any Subprocessors.

ii. Subject to subsection (iii) below, Customer may in its absolute discretion notify Brightspot in writing within thirty (30) days of the date of termination of the Brightspot Platform Agreement to require Brightspot to delete and procure the deletion of all copies of the Personal Information processed by Brightspot. In such case, Brightspot shall, to the greatest extent reasonably possible, within ninety (90) days of the date of termination of the Brightspot Platform Agreement: (1) comply with any such written request; and (2) use reasonable efforts to procure that its Subprocessors delete all Personal Information processed by such Subprocessors.

iii. Notwithstanding the foregoing, Customer acknowledges that it may be impossible to completely delete certain residual Personal Information. Additionally, Brightspot and its Subprocessors may retain Personal Information to the extent required by and only to the extent and for such period as required by applicable laws and always provided that Brightspot shall ensure the confidentiality of all such Personal Information and shall ensure that such Personal Information is only processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose. To the extent permitted by applicable Data Protection Laws, Brightspot may deidentify/anonymize or aggregate the Personal Information and may continue to collect, use, retain, access, share, transfer, sell or disclose such deidentified/anonymized or aggregated information following the termination of the Brightspot Platform Agreement consistent with the terms and conditions of applicable Data Protection Laws.

11. Data Security Measures.  Brightspot shall utilize industry standard practices on information security management to safeguard sensitive information (such as Personal Information), including the measures set out in Annex II to the Standard Contractual Clauses attached hereto. Our information security systems apply to people, processes and information technology systems on a risk management basis. Without limiting the foregoing, Brightspot shall treat Personal Information as the confidential information of the Customer, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of such data and information. Upon request by the Customer, but no more frequently than once per calendar year (or more frequently if circumstances reasonably require) and only upon ten business days prior written notice, Brightspot shall make available information reasonably necessary to demonstrate compliance with this DPA. Customer has assessed the security measures offered by Brightspot to meet the standards required by applicable Data Protection Laws as at the effective date hereof.

If Brightspot becomes aware of a security incident involving a Customer’s Personal Information, Brightspot will (a) notify the Customer of the security incident within 72 hours, (b) investigate the security incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the security incident, and (c) take steps to remedy any non-compliance with this DPA. Notwithstanding the foregoing, because no method of transmission over the Internet, or method of electronic storage, is 100% secure, Brightspot cannot guarantee that unauthorized parties will not gain access to Personal Information processed by the Services. To the extent permitted by applicable law, Brightspot expressly excludes any liability arising from any unauthorized access to Personal Information.

12. Affiliates. Depending on the terms of your Brightspot Platform Agreement, we may in certain circumstances collect, receive or otherwise process Personal Information in connection with use of the Services by a Customer’s affiliates. In such cases, the Customer will act as a single point of contact for its affiliates with respect to compliance with applicable Data Protection Laws, such that if Brightspot gives notice to the Customer, such information or notice will be deemed received by the Customer’s affiliates. Customer shall be responsible for such affiliates’ compliance with this DPA and all acts and/or omissions by a Customer affiliate with respect to Customer’s obligations in this DPA shall be considered the acts and/or omissions of Customer. The Parties acknowledge and agree that any claims in connection with this DPA (or applicable Data Protection Laws) will be brought by the Customer, whether acting for itself or on behalf of an affiliate.

13. Customer Agreements. Customer agrees that it: (i) will comply with its obligations under all applicable Data Protection Laws and related laws with respect to its processing and handling of Personal Information; (ii) will make appropriate use of the Services to ensure a level of security appropriate to the particular content of the Customer Personal Information, such as pseudonymizing or backing-up Customer Personal Information; (iii) has obtained all consents, permissions and rights necessary under applicable Data Protection Laws and related laws for Brightspot to lawfully process Customer’s Personal Information for the purposes, including, without limitation, Customer's sharing and/or receiving of Customer Personal Information with third-parties via the Services; and (iv) unless the Parties have agreed otherwise in an amendment to Customer’s Brightspot Platform Agreement or in a SOW, Customer shall only provide, deliver or otherwise make available to Brightspot Personal Information to the extent required for the Customer’s End Users to access and receive the Services and shall not provide, deliver or otherwise make available to Brightspot any other Personal Information for any other purpose. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Personal Information and the means by which Customer acquired the personal information. Customer specifically acknowledges that its use of the Brightspot Platform will not violate the rights of any data subject that has opted-out from sales or other disclosures of Personal Information, to the extent applicable under Data Protection Laws.

14. Limitation of LiabilitySubject to the terms of the Standard Contractual Clauses and Section 8 of this DPA, Brightspot’s aggregate liability to a Customer arising from or related to this DPA is subject to the applicable terms and conditions of the Customer’s applicable Brightspot Platform Agreement.

15. Indemnity. Customer agrees to indemnify Brightspot and its officers, directors, employees, agents, affiliates, successors and permitted assigns (each an "Indemnified Party", and collectively the "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees and court fees, that are incurred by the Indemnified Parties (collectively, "Losses") arising out of any third party claim brought against Brightspot relating to or arising out (i) any instructions given by the Customer to Brightspot with respect to processing of Personal Information, (ii) any failure to obtain the consents or provide the notices required under Section 3, or (iii) any other breach or violation by the Customer of any of its obligations under this DPA or any breach or violation of any Data Protection Laws.

16. Enforceability of this Addendum. Any provision of this DPA that is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions hereof. The Parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute and shall then incorporate such substitute provision into the Brightspot Platform Agreement.

17. Integrations. The Brightspot Platform may enable Customer to access, or include integrations with, third party services, stores, platforms, products or technologies (“Third Party Products”). Third Party Products include but are not limited to Github code repositories, continuous integration systems, identity management systems, communication and file sharing systems such as those offered by Slack, virtual private networks, Jira project management systems, cloud measurement and automation software, etc. If Customer elects to enable, access or use such Third Party Products, its access and use of such Third Party Products is governed solely by the terms and conditions and privacy policies of such Third Party Products, and Brightspot does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Products, including, without limitation, their content or the manner in which they handle personal information or personal data or any interaction between Customer and the provider of such Third Party Products. Without limiting the foregoing, please know that all Personal Information shared with or submitted to the Third Party Products by or on behalf of Customer will be entirely outside of Brightspot’s control and will not be subject to this DPA or any of Brightspot’s privacy policies (e.g., Personal Information submitted to Slack via a Slack message). Brightspot is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third Party Products, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third Party Products. The providers of Third Party Products shall not be deemed or treated as Subprocessors for any purpose under this DPA unless otherwise expressly identified as Subprocessors in our then-current Subprocessor List at https://www.brightspot.com/brightspot-subprocessor-list.

EXHIBIT 1:  Standard Contractual Clauses

STANDARD CONTRACTUAL CLAUSES

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 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 written mutual 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.

Clause 9

Use of sub-processors

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

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. ([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.

(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.

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 this 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.

(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.

(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 

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

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 of the EU Member State in which the data exporter is established.  

(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 be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A.   LIST OF PARTIES

Data exporter(s): [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: As set forth in the Customer’s Brightspot Platform Agreement, DPA, and any SOWs into which these Clauses are incorporated.

Address: As set forth in the Brightspot Platform Agreement, DPA, and any SOWs into which these Clauses are incorporated.

Contact person’s name, position and contact details: As set forth in the Brightspot Platform Agreement, DPA, and any SOWs into which these Clauses are incorporated.

Activities relevant to the data transferred under these Clauses:

The data exporter is transferring personal data for purposes of receiving the data importer’s services (namely, data importer’s Brightspot Platform) and any other additional services subscribed to, or licensed by, the data exporter.

Signature and date: As per the signature and date of the Brightspot Platform Agreement entered into between the importer and exporter.

Role (controller/processor): Controller

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name: Perfect Sense Inc. d/b/a/ Brightspot

Address: 12120 Sunset Hills Road, the 6th Floor, Reston, VA 20190

Contact person’s name, position and contact details: David Habib, CIO, privacy@brightspot.com

Activities relevant to the data transferred under these Clauses:

Brightspot offers a proprietary online publishing and content management software-as-a-service platform known as “Brightspot” which streamlines how online publishers create, manage, edit and publish content. Brightspot processes personal data only as necessary to provide the Brightspot Platform Services and in each case consistent with the terms of the Customer’s Brightspot Platform Agreement and any SOWs entered into between Brightspot (in its capacity as Processor) and its Customer (in its capacity as Controller) as well as the corresponding data processing addendum and these Standard Contractual Clauses.

Signature and date: As per the signature and date of the Brightspot Platform Agreement entered into between the importer and exporter.

Role (controller/processor): Brightspot as Processor; Customer as Controller

B.   DESCRIPTION OF TRANSFER 

Categories of data subjects whose personal data is transferred:

Subject to the determination and control by the data exporter in its sole discretion, and in compliance with the applicable data protection laws, data exporter may submit personal data to the Services relating to the following categories of data subjects including but not limited to:

· Data exporter’s End Users (as defined in the Brightspot Platform Agreement entered into by the Parties) authorized by data exporter to use the Brightspot Platform Services.

· Other data subjects as mutually agreed in writing by the Parties.

Categories of personal data transferred:

At its sole discretion after careful evaluation of compliance with the applicable laws, the data exporter and its users and end users may submit personal data to the Processor which may include but is not limited to the categories below:

· Name, email address and related contact information as necessary to provision access credentials for data exporter’s End Users to access and use the Brightspot Platform Services.

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 Processor’s services are not designed to process any sensitive data. Data exporter and its End Users may submit special categories of Personal Data via the Services, the extent of which is determined and controlled by the data exporter.

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

Continuous.

Nature of the processing

Processor will process personal data submitted, stored, sent or received by or from the data exporter and its End Users for the purposes of providing the Processor’s Brightspot Platform Services and related technical support to the data exporter in accordance with the Brightspot Platform Agreement.

Purpose(s) of the data transfer and further processing

Processor will transfer and further process such personal data for the purposes of providing the Processor’s Brightspot Platform Services to the data exporter.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

The applicable Term (as defined in the Brightspot Platform Agreement) plus the period from expiry of such Term until deletion of all personal data by the Processor in accordance with such Brightspot Platform Agreement, the Data Processing Addendum entered into by the Parties and the corresponding Standard Contractual Clauses.

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

Same as above.

C.   COMPETENT SUPERVISORY AUTHORITY

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

In accordance with Clause 13, the competent supervisory authority is located in the EU Member State in which the data exporter is established.

ANNEX II

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

ANNEX III

LIST OF SUB-PROCESSORS

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

Amazon Web Services

[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.

[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.

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

[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.

[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.