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Data Privacy Addendum

 

Last Modified: July 01, 2022

 

This Data Privacy Addendum (“DPA”) forms part of the Software and Services Agreement or other written or electronic agreement between Saphety Level – Trusted Services, S.A. and Customer governing the purchase of Software and Services from Sovos (identified as “Software,” “Services,” “Products,” or otherwise in the applicable agreement, and hereinafter defined as “Services”) (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.

 

Please read the DPA carefully before commencing use of the Sovos Software and Services. By clicking to accept or agree to the DPA when this option is made available to you, or by signing the Order Form or Proposal you accept and agree to be bound and abide by this DPA. If you are entering into this DPA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and your affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this DPA and you may not use the Software and Services.

 

By signing this DPA, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent Sovos processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

 

In the course of providing the Services to Customer pursuant to the Agreement, Sovos may Process Personal Data on behalf of Customer and the parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

 

APPLICATION OF THIS DPA:

If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement. In such case, the Sovos entity that is party to the Agreement is party to this DPA.

 

If the Customer entity signing this DPA has executed an Order Form with Sovos or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form, and the Sovos entity that is party to such Order Form is party to this DPA.

 

If the Customer entity signing this DPA is neither a party to an Order Form nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity who is a party to the Agreement executes this DPA.If the Customer entity signing the DPA is not a party to an Order Form nor a Software and Services Agreement directly with Sovos, but is instead a customer indirectly via an authorized reseller of Sovos services, this DPA is not valid and is not legally binding. Such entity should contact the authorized reseller to discuss whether any amendment to its agreement with that reseller may be required.

 

This DPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in Customer’s Agreement (including any existing data processing addendum to the Agreement).

 

1            DATA PROCESSING TERMS DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (is permitted to use the Services pursuant to the Agreement between Customer and Sovos, but has not signed its own Order Form with Sovos and is not a “Customer” as defined under the Agreement.

“Business Contact Information (BCI)” means Customer’s own business contact information that Customer has provided for the purposes of communicating with them such as invoicing, support services, marketing etc.; this information may include: customer contact name, job title, business contact email address, telephone numbers and registered office address. Whilst this information may be publicly available, some of it may also be Personal Data. Customer agrees that the Business Contact Data may be transferred to other Sovos Affiliates (including overseas transfers) for the purposes of administration and performing the contract.

“CCPA” means the California Consumer Privacy Act of 2018 (AB-375), as amended by the CPRA, including all regulations relating thereto.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Customer Data” means all Personal Data Processed by Sovos on behalf of Customer for the purpose of providing the Services.

“Data Protection Laws and Regulations” means the applicable and relevant data privacy laws and regulations in the territory where the Sovos offices are located and Sovos provides the Services and products: EU GDPR and the UK Data Protection Act 2018 and any other legislation in force from time to time and any laws that replace or amend any of these (including GDPR) together with all applicable laws relating to the processing or protection of personal data and privacy, including where applicable, the guidance and codes of practice or conduct issued or approved by Article 29 Working Party or the European Data Protection Board (as applicable), the UK Information Commissioner and/or relevant supervisory authorities from time to time. Brazil’s, Lei Geral de Protecao de Dados (LGPD). United States and its states including California Consumer Privacy Act (CCPA). Turkey (KKVK).

“Data Subject” means the identified or identifiable person to whom Personal Data relates, including as applicable any “consumer” or “household” as that term is defined by the CCPA.

“GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.

“Security Schedule” means the then current Security Schedule applicable to the Services purchased by Customer, as updated from time to time, and made reasonably available by Sovos.

“Sovos” means the Sovos entity which is a party to this DPA, as specified in the section “APPLICATION OF THIS DPA” above, being Sovos Compliance, LLC, a company incorporated in Delaware, or Sovos Affiliate in the territory where the Services are provided.

“Sovos Group” means Sovos and its Affiliates engaged in the Processing of Personal Data.

“Standard Contractual Clauses” means the agreement executed by and between Customer and Sovos Compliance, LLC, and attached hereto as Schedule 2 pursuant to the European Commission’s decision on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

“Sub-processor” means any Processor engaged by Sovos or a member of the Sovos Group.

“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR, or other relevant territory regulatory authority for data privacy.

 

2            PROCESSING OF PERSONAL DATA

2.1         Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Sovos is the Processor and that Sovos or members of the Sovos Group will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.

2.2         Compliance with Law. Each party shall comply with the obligations that apply to it under applicable Data Protection Laws and Regulations. Sovos acknowledges that Customer is acting hereunder in reliance on Sovos’ compliance with applicable Data Protection Laws and Regulations. Customer acknowledges that Sovos is acting hereunder in reliance on Customer’s compliance with applicable Data Protection Laws and Regulations.

2.3         Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, including obtaining all necessary consents from the data subjects.

2.4    Sovos’ Processing of Personal Data. Sovos shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) as needed to provide the Services, (ii) in accordance with the specific instructions that Sovos has received from Customer, and (iii) and as needed to comply with law (in which case, Sovos shall provide prior notice to Customer of such legal requirement, unless that law prohibits this disclosure) (v) shall not sell the Personal Data as such term is defined by the CCPA (regardless of whether CCPA applies). For the avoidance of doubt, Sovos will Process Personal Data in accordance with the legal requirements directly applicable to Sovos’ provision of the Services.

2.5         Details of the Processing. The subject-matter of Processing of Personal Data by Sovos is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.

 

3            DATA SUBJECT REQUESTS

Sovos shall, to the extent legally permitted, immediately notify Customer if Sovos receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Sovos shall assist Customer by appropriate technical and organizational measures and shall immediately provide Customer with all relevant information for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Sovos shall upon Customer’s request assist Customer in responding to such Data Subject Request, to the extent Sovos is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Sovos’ provision of such assistance to the Customer, but information provided to the Data Subject shall be provided at no charge.

 

4            SOVOS PERSONNEL

4.1         Confidentiality. Sovos shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and are subject to an enforceable obligation of confidence with regards to the Personal Data.

4.2         Limitation of Access. Sovos shall ensure that Sovos’ access to Personal Data is limited to those personnel performing Services in accordance with the Agreement. 

4.3    Data Protection Officer. Members of the Sovos Group have appointed a data protection officer. The appointed person may be reached at privacy@sovos.com.

 

5        SUB-PROCESSORS

5.1         Appointment of Sub-processors. Customer acknowledges and agrees that Sovos and Sovos’ Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Sovos or a Sovos Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.

5.2         List of Current Sub-processors and Notification of New Sub-processors. Sovos shall make available to Customer the current list of Sub-processors for the Services identified in Appendix 2 of the Standard Contractual Clauses attached hereto. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location. Sovos will update such list with details of any change in Sub-Processors at least 10 days’ prior to such change and shall communicate such change via email to Customer and Customer has the right to object (acting reasonably) to the change in Sub-Processor within 14 days of being notified of such change.

5.3         Liability. Sovos shall be liable for the acts and omissions of its Sub-processors to the same extent Sovos would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

 

6       SECURITY

Sovos shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the then current Sovos Security Schedule.

 

7      DATA PROTECTION IMPACT ASSESSMENT & AUDIT

Upon Customer’s request, Sovos shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the relevant Data Protection Laws to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise already have access to the relevant information, and to the extent such information is available to Sovos. Sovos shall provide reasonable assistance to Customer in relation to any approval of the Information Commission or other Supervisory Authority to any Processing of Customer Data, to the extent required under law. Subject to Confidentiality Agreements being in place, Customer (at its own cost) is entitled to audit Sovos for its compliance under this Agreement (not more than once per year), upon giving Sovos 20 days’ notice with written scope and causing minimal business disruption. For the avoidance of doubt the scope of such audit shall be strictly limited to the Customer Personal Data processed under this Agreement.

 

8       EUROPEAN DATA TRANSFERS

8.1         (Where applicable for European and UK contracts) Any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations, shall be governed by the Standard Contractual Clauses set forth in Schedule 2 to this DPA apply to the Services, subject to the additional terms in this Section 8.

8.2  Customers covered by the Standard Contractual Clauses. The Standard Contractual Clauses and the additional terms specified in this Section 8 apply to (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and its Authorized Affiliates and, (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the Services. For the purpose of the Standard Contractual Clauses and this Section 8, the aforementioned entities shall be deemed “Data Exporters”.

8.3     Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions to Sovos at the time of signature of the Agreement for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement and applicable Order Form(s); (b) Processing initiated by Customer’s users in their use of the Services and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.

8.4  Sub-processors. Pursuant to the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) Sovos’ Affiliates may be retained as Sub- processors; and (b) Sovos and Sovos’ Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Sovos shall make available to Customer the current list of Sub-processors in accordance with Section 5.2 of this DPA. Pursuant to the Standard Contractual Clauses, Customer acknowledges and expressly agrees that Sovos may engage new Sub-processors as described in Sections 5.2 and 5.3 of the DPA.

8.5   Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in the Standard Contractual Clauses shall be provided by Sovos to Customer upon Customer’s written request.

8.6    Conflict. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Schedule 2, the Standard Contractual Clauses shall prevail.

 

9      SECURITY INCIDENTS

Sovos maintains security procedures specified in the Security Schedule and shall promptly notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data, including any Personal Data, transmitted, stored or otherwise Processed by Sovos or its Sub-processors of which Sovos becomes aware (a “Security Incident”). Sovos shall make reasonable efforts to take those steps as Sovos deems necessary and reasonable in order to remediate the cause of such a Security Incident to the extent the remediation is within Sovos’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer’s own security failures or that of Customer’s users.

 

10          RETURN AND DELETION OF CUSTOMER DATA

Upon termination or expiry of the Agreement and at the customer’s request, (at Customer’s cost for a different formats), either return all Customer Data or securely dispose of Customer Data, except to the extent that any applicable law or regulation requires Sovos to retain a copy of the Customer Data for a fixed period. Sovos shall securely dispose of any Customer Data no longer required to be stored by Sovos under applicable law or regulation or no longer required for permitted Processing under applicable Data Protection Laws and Regulations.

 

11     AUTHORIZED AFFILIATES

11.1       Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Sovos and each such Authorized Affiliate subject to the provisions of the Agreement and this Section Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.

11.2       Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Sovos under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

11.3       Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with Sovos, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, provided that, except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Sovos directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together. 

 

12     LIMITATION OF LIABILITY

12.1       Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and Sovos, whether in contract, tort or under any other theory of liability, is subject to the “Limitation of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

12.2       For the avoidance of doubt, Sovos’ and its Affiliates’ total liability for all claims from Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

 

13     CHANGES

Sovos may, from time to time and in its sole discretion, make changes to this DPA or the terms and conditions set forth herein, provided however, in no event shall Sovos make any changes that will adversely impact or degrade Sovos’ obligations pursuant to this DPA without notifying the Customer. The Customer has the right to object to any such change within 30 days of receipt of the notice (acting reasonably) or will be deemed to have accepted such change. When Sovos makes changes hereto which do not adversely impact or degrade Sovos’ obligations pursuant to this DPA, Sovos will provide notice as appropriate under the circumstances, e.g., by displaying a notice within the applicable Sovos products or services or by sending Customer an email. The latest version date of this Agreement will apply.

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ANNEX I (A&B): DETAILS OF THE PROCESSING

 

NATURE AND PURPOSE OF PROCESSING

Sovos will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.

DURATION OF PROCESSING

Subject to Section 10 of the DPA, Sovos will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

CATEGORIES OF DATA SUBJECTS

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

  • Prospects, customers, business partners and vendors of Customer (who are natural persons)
  • Employees or contact persons of Customer’s prospects, customers, business partners and vendors
  • Employees, agents, advisors, freelancers of Customer (who are natural persons)
  • Customer’s Users authorized by Customer to use the Services

TYPE OF PERSONAL DATA

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

  • Contact information (company, email, phone, physical address)
  • Tax ID number and/or social security number
  • Date of birth
  • Salary or other compensation amounts
  • Connection data (internet or other electronic network activity information)

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STANDARD CONTRACTUAL CLAUSES FOR TRANSFERS OUTSIDE OF THE EU

SECTION I

Clause 1 – Purpose and scope

(a)          The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of 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 Annex 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 Annex. 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.

 

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 7 – Docking  (not used)

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 Annex 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 Annex 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 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 (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:

the onward transfer is to a country benefitting from an adequacy decision pursuantto Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

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;

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

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)          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 10 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. 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 to 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 for any damages it causes the other Party 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 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

[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.

The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

 

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14 – Local laws and practices affecting compliance with the Clauses

  • The 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.
  • The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
  • 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 andormat of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
  • the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

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

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

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

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

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

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 Sweden.

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 Sweden.

(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.

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ANNEX II TO THE STANDARD CONTRACTUAL CLAUSES – SECURITY

 

This Annex forms part of the Clauses as agreed by the parties.

Description of the technical and organisational security measures implemented by the Data Importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Sovos Security Schedule applicable to the specific Services purchased by Data Exporter and made available by Data Importer.

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ANNEX III TO THE STANDARD CONTRACTUAL CLAUSES (AFFILIATES & SUBPROCESSORS)

Brazil:

Sovos Compliance Desenvolvimento de Sistemas LTDA

Taxweb Software de Compliance Fiscal S.A.

FIT Sistemas Solucoes LTDA

Millenium Solucoes EM Tecnologia LTDA

Saphety Brasil Transações Eletrônicas LTDA

Chile:

E-Partners SpA

Acepta.com S.A.

Colombia:

Acepta Colombia S.A.S.

Paperless S.A.S.

Saphety Transacciones Electrónicas S.A.S.

Denmark:

Fiscal Reps ApS

Ecuador:

Esdinamico Compania Ltda.

Finland:

Fiscal Reps Finland OY

France:

Fiscal Reps S.a.r.l.

Germany:

Sovos Compliance GmbH

Greece:

Sovos Compliance (Hellas) S.M. Ltd

Italy:

Foriba SRL

Fiscal Reps SRL

Luxembourg:

Fiscal Reps S.a.r.l.

Malta:

Fiscal Reps Malta Ltd

Mexico:

Advantage Security, S. DE R.L. DE C.V.

Netherlands:

Sovos Compliance B.V.

Peru:

Acepta.com Peru S.A.C.

Paperless S.A.C.

Portugal:

Petapilot S.A.

Saphety Level – Trusted Services S.A.

Fiscal Reps Unipessoal Lda

Spain:

Fiscal Reps SL

Sweden:

Trustweaver AB

Fiscal Reps Sweden AB

Turkey:

ISIS E-Dönüşüm Teknolojileri Sanayi Ticaret Anonim Şirketi

F.I.T. Bilgi Islem Sistemleri Servisleri Sanayi ve Ticaret Anonim Sirketi

United Kingdom:

Fiscal Reps Limited

Sovos Compliance Limited

Accordance Technical Services Limited

United States:

Sovos Compliance LLC