GDPR Addendum

Last updated August 17, 2020

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GDPR Addendum

GDPR Addendum

Last updated August 17, 2020

Important Note:

The policy below is effectively immediately from August 17, 2020. If the GDPR applies to your use of Sogolytics, the Standard Contractual Clauses (SCC) will automatically apply as part of the GDPR Addendum.

This General Data Protection Regulation Addendum ("Addendum") supplements the Terms of Service ("Terms of Service") between Sogolytics and Customer (each as defined in the Terms of Service).
Capitalized terms used but not defined herein shall have the meaning assigned to them in the Terms of Service.
This Addendum is applicable when the General Data Protection Regulation ("GDPR") applies to Customer’s use of the Service(s) (as defined in the Terms of Service) to process Customer Data. This Addendum is an agreement between Customer and Sogolytics.

1. Definitions

1.1 "Data Protection Legislation" means GDPR, all laws and regulations implementing or made under GDPR by EU member states, and any amendment or re-enactment of them.
1.2 "EEA" means the European Economic Area.
1.3 "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
1.4 "Standard Contractual Clauses" means in the form of the standard contractual clauses approved by European Commission decision 2010/87/EU, and attached herewith as Annexure 1.

2. Data Processing

2.1 Scope and Roles. This Addendum applies when Customer Data is processed by Sogolytics. In this context, Sogolytics will act as “data processor” to Customer who will act as “data controller” with respect to Customer Data (as each term is defined in the GDPR).
2.2 Customer Controls. The Service(s) provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data as described in the Documentation. Customer may use these controls to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects.
2.3 Compliance with Laws. Each party with comply with all laws, rules and regulations applicable to it and binding on it in the performance of this Addendum, including the GDPR. For the avoidance of doubt, all requirements and obligations herein shall only apply to personal data originating in the European Economic Area that Sogolytics processes.

3. Customer Instructions

The parties agree that this Addendum and the Agreement (including the provision of instructions via Customer and User accounts on the Service(s)) constitute Customer’s documented instructions regarding Sogolytics processing of Customer Data ("Documented Instructions"). Sogolytics will process Customer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Sogolytics and Customer, including agreement on any additional fees payable by Customer to Sogolytics for carrying out such instructions.

4. Sub-processing

Conditions for Subcontracting. Customer specifically authorizes the engagement of Sogolytics's Affiliates as subcontractors. In addition, Customer generally authorizes the engagement of any other third parties as subcontractors, provided that any subcontractors will be permitted to obtain Customer Personal Data only for the purposes of delivering the Services to Customer and shall be prohibited from using Customer Personal Data for any other purpose. Sogolytics remains responsible for its subcontractors’ compliance with the obligations of the MSA and this Addendum. Sogolytics agrees that any subcontractors engaged for performance of the Services under the MSA and this Addendum will have entered into written confidentiality agreements with Sogolytics requiring that the subcontractor maintain the confidentiality of all confidential information acquired by the subcontractor by Sogolytics during the term of the subcontractor’s services to Sogolytics. Customer consents to Sogolytics’s use of sub-processors as described in this Section. Sogolytics shall keep the list of subprocessors updated on its website, and Customer shall review the list of subprocessors as updated from time to time.

5. Application of Standard Contractual Clauses

The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR).

6. Termination of the Addendum

This Addendum shall continue in force until the termination of applicable subscription(s) and/or the Agreement (the "Termination Date").

7. Return or Deletion of Customer Data

The Services provide Customer with controls that Customer may use to retrieve or delete Customer Data as described in the Documentation and Privacy Policy. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this Section. After the Termination Date, these rights shall be exercisable only as permitted under the Terms of Service.

8. General

8.1 By executing this Addendum, the parties hereto ratify and confirm the terms of the Terms of Service, as modified by the terms of this Addendum.
8.2 In case of any conflict in the terms and conditions of the Terms of Service and the terms and conditions of this Addendum, the terms and conditions of this Addendum shall control and be binding. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
8.3 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
8.4 Without prejudice to Clause 7 (Mediation and Jurisdiction) and Clause 9 (Governing Law) of the Standard Contractual Clauses, Customer and Sogolytics submit to the choice of jurisdiction stipulated in the Terms of Service with respect to any disputes or claims howsoever arising under this Addendum and this Addendum and all non-contractual or other obligations arising out of or in connection with it shall be governed by the laws of the country or territory stipulated for such purpose in the Terms of Service.

ANNEXURE 1
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
The entity identified as "Customer" in the Addendum
(the data exporter)
AND
Sogolytics, LLC.
2291 Wood Oak Drive, Suite 300 Herndon, VA 20171, USA.
(the data importer)
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions

For the purposes of the Clauses:
  • 'personal data', ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  • ‘the data exporter’ means the controller who transfers the personal data;
  • ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  • ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  • ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  • ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

  • The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  • The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  • The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  • The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:
  • that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  • that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  • that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
  • that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  • that it will ensure compliance with the security measures;
  • that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  • to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  • to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  • that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  • that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer

The data importer agrees and warrants:
  • to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  • that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  • that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
  • that it will promptly notify the data exporter about:
    • any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    • any accidental or unauthorised access; and
    • any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  • to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  • at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  • to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  • that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  • that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  • to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

  • The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  • The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  • If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

  • The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    • to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    • to refer the dispute to the courts in the Member State in which the data exporter is established.
  • The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

  • The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  • The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  • The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9
Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10
Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11
Sub-processing

  • The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses (3). Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  • The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  • The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  • The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12
Obligation after the termination of personal data-processing services

  • The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  • The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1

To the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
The data exporter wishes to use the data importer’s software-as-a-service (SaaS) platform to collect, store, process and access data.
Data importer
The data importer is (please specify briefly activities relevant to the transfer):
A provider of a software-as-a-service (SaaS) platform.
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
The data exporter’s customers, employees, suppliers and end-users.
Categories of data
The personal data transferred concern the following categories of data (please specify):
Name, email address, and such other information as may be provided by data exporter or data subject.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The processing activities are defined in the Terms of Service.

Appendix 2

To the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are as described in the Terms of Service.
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