GDPR Addendum

ICE CREAM SOCIAL– USER AGREEMENT

United Kingdom, European Union and Swiss Data Processing Addendum

This United Kingdom, European Union and Swiss Data Processing Addendum (“Addendum”) is incorporated into the “Agreement” (being the User Agreement entered into by Ice Cream Social, Inc. and the User). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.  The scope of definitions for terms that are defined in this Addendum shall be limited to this Addendum (unless expressly referred to in the body of the Agreement).  Unless expressly modified below, the terms of the Agreement shall remain in full force and effect.

1.     Definitions

1.1.           The definitions of this Section 1.1 shall apply to this Addendum, and cognate terms shall be construed accordingly.

• “Adequacy Decision” a decision of a Competent Authority made pursuant to Applicable UK and EU Data Laws (specifically including GDPR Article 45) which allows for a Transfer in compliance with Applicable UK and EU Data Laws without the need to take further action.
• “Affiliate” means any entity which 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.
• “Applicable UK and EU Data Laws” means as applicable any European Union (“EU”) and/or Member State and/or United Kingdom (“UK”) laws (including without limitation, EU Data Protection Laws and UK Data Protection Laws) and any data protection or privacy laws of any other country and any laws, rules, regulation and in whatever form codes of practice together with any guidelines or other requirements of UK and/or EU regulatory authorities from time to time, that apply to any Controller Personal Data Processed pursuant to the Agreement.
• “Competent Authority” means: (i) in respect of the UK the Information Commissioner’s Office; (ii) in respect of any EEA member state, the EU Commission; and/or (iii) any other competent court or authority in the UK or EEA, as the case may be.
• “Controller” means the User, who is a Controller under Data Protection Laws pursuant to Section 2.
• “Controller Personal Data” means any Personal Data Processed by Processor on behalf of Controller pursuant to the Agreement.
• “Processor” means Ice Cream Social, Inc.
• “EEA” means the European Economic Area.
• “EEA Restricted Transfer” means a Restricted Transfer whereby the Controller is subject to EU Data Protection Laws in respect of such Transferred Personal Data.
• “EU Data Protection Laws” means the EU GDPR, any domestic legislation of each Member State supplementing the EU GDPR and all as amended, replaced or superseded from time to time, including by the EU GDPR and laws implementing or supplementing the EU GDPR and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
• “EU GDPR” means EU General Data Protection Regulation 2016/679.
• “EU Standard Contractual Clauses” means “Module Two: Transfer controller to processor” of the European Commission’s Standard Contractual Clauses for the transfer of personal data from a controller to a processor set out in the Annex to Commission Implementing Decision (EU) 2021/914, a complete copy of which comprises Annex 2.
• “Restricted Transfer” means any Transfer: (i) of Controller Personal Data from Controller to Processor; or (ii) of Controller Personal Data from the Processor to another Subprocessor; in each case, where such Transfer is not subject to an Adequacy Decision and the receiving party is outside the EEA, Switzerland or UK.
• “Services” means the services and other activities to be provided by Processor for Controller pursuant to the Agreement.
• “Subprocessor” means any person (including any third party and any Processor Affiliate, but excluding employees of Processor) appointed by or on behalf of Processor to Process Controller Personal Data on behalf of the Controller in connection with the Agreement.
• “Supplementary Measures” means the provisions of Annex 3, which set out the supplementary measures to the UK Standard Contractual Clauses and EU Standard Contractual Clauses used to ensure an essentially equivalent level of protection as provided under Applicable UK and EU Data Laws
• “Transfer” has the meaning given to “transfer” or “onward transfer” (as applicable) in Article 44 of the GDPR, and related expressions shall be construed accordingly.
• “UK Data Protection Laws” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the UK Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
• “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the UK Data Protection Act 2018.
• “UK Restricted Transfer” means a Restricted Transfer whereby the Controller is subject to UK Data Protection Laws in respect of such Transferred Personal Data.
• “UK Standard Contractual Clauses” means the Standard Data Protection Clauses issued by the UK Information Commissioner’s Office under Section 119A(1) of the UK Data Protection Act 2018 – International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, Version B1.0, a completed copy of which comprises Annex 1.

1.2.           The terms, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the meanings assigned in the Applicable UK and EU Data Laws, and their cognate terms shall be construed accordingly.

1.3.           The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

1.4.           A reference to a provision of the “GDPR” in this Addendum shall be deemed to include equivalent provisions of the UK GDPR and/or the EU GDPR and/or the Swiss FADP (Federal Act on Data Protection), as applicable.

2.     Processing of Controller Personal Data

2.1.           The Processor shall:

2.1.1.       comply with all Applicable UK and EU Data Laws in the Processing of Controller Personal Data; and

2.1.2.       only Process Controller Personal Data as directed by the Controller, unless such Processing is required by Applicable UK and EU Data Laws in which case the Processor shall inform the Controller of that legal requirement (to the extent permitted by the Applicable UK and EU Data Laws) before Processing that Controller Personal Data.

2.2.           The Controller hereby:

2.2.1.       instructs Processor to:

2.2.1.1.            Process Controller Personal Data; and

2.2.1.2.            transfer Controller Personal Data to any country or territory,

as is necessary to provide the Services under the Agreement subject to Section 11; and

2.2.2.       the Controller represents and warrants that it is and will at all times remain duly and effectively authorized to give the instruction set out in Section 2.2.1.

2.3.           Pursuant to GDPR Article 28(3), Controller agrees that the descriptions of i) the subject matter, nature and purpose of Processing, ii) the types of Controller Personal Data to be Processed, and iii) the categories of Data Subjects within the Controller Personal Data to be Processed under the Agreement, are sufficiently specified in the Processor’s technical documentation as received by Controller under the Agreement, or as specified in the EU Standard Contractual Clauses and/or UK Standard Contractual Clauses (if applicable).    Upon written notice to Controller, the Processor may make reasonable revisions to such descriptions from time to time in order to maintain compliance with Applicable UK and EU Data Laws.

3.     Processor Personnel

Processor shall ensure that access to the Controller Personal Data by any employee, agent or contractor of Processor is limited to those individuals that need to know or access the relevant Controller Personal Data in order for the Processor to perform the Agreement.

4.     Security

4.1.           Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risks (of varying likelihood and severity) to the rights and freedoms of natural persons, Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to those risks, including, as appropriate, the security measures referred to in GDPR Article 32(1) (e.g., pseudonymization and encryption). The Controller acknowledges and agrees that the obligations in Section 12.5 of the Agreement shall be adequate unless the Controller notifies the Processor to the contrary and the Controller shall pay to the Processor its costs for any subsequent changes of technical and organizational measures.

4.2.           In assessing the appropriate level of security provided under Section 4.1, the Processor shall take into account the risks that arise from Processing Controller Personal Data including Personal Data Breaches.

4.3.           The Processor shall not be liable for any breach of this Section 4 where an act or omission of the Controller requires a change to the Processor’s appropriate technical and organizational measures pursuant to Section 4.1 unless the Controller gives the Processor at least sixty (60) days prior notice and the Controller shall pay to the Processor its costs for any subsequent changes of technical and organizational measures.

5.     Subprocessing

5.1.           Controller authorizes Processor to appoint (and permit authorized Subprocessors to appoint) Subprocessors in accordance with this Section 5 and any restrictions in the Agreement.

5.2.           The Controller consents to the Processor using those Subprocessors already engaged by Processor as of the Effective Date, subject to Processor meeting the obligations set out in Section 5.4. The Processor shall make a list available to the Controller of Subprocessors upon request.

5.3.           Subject to Section 5.2, Processor shall give Controller not less than fifteen (15) days prior written notice before appointing any new Subprocessor.  The Controller must notify the Processor in the event that it does not agree to the proposed appointment of Subprocessor, within fifteen (15) days of receipt of such notice, specifying its grounds for such objection (acting reasonably). If the Processor receives such objection, the Processor may (at its option):

5.3.1.       cancel its plans to appoint such proposed Subprocessor;

5.3.2.       take corrective action to address the objections raised by Controller.  If Controller accepts such corrective actions, then Processor may appoint the proposed Subprocessor.  If Controller reasonably objects to such corrective actions (acting reasonably), the parties shall work together in good faith to either adjust the corrective actions, or effect a commercially reasonable change in the provision of the Services that avoids the use of that proposed Subprocessor; or

5.3.3.       Processor may terminate the Agreement upon written notice to Controller.

5.4.           With respect to each Subprocessor, the Processor shall:

5.4.1.       ensure that the Subprocessor is bound by a written agreement that offers at least the same levels of protection for Controller Personal Data on terms substantially the same as those set out in this Addendum and the Agreement, and meets the requirements of Article 28(3) of the GDPR and relevant Applicable UK and EU Data Laws;

5.4.2.       ensure the Subprocessor shall cease processing Controller Personal Data on termination of this Agreement for any reason except if requested otherwise by Processor for purposes compliant with Applicable Laws (for example if needed to provide any  exit procedure as agreed with Controller);

5.4.3.       remain fully liable to Controller, where the Subprocessor fails to fulfil its obligations in respect of Controller Personal Data under such written agreement with Processor.

6.     Data Subject Rights

6.1.           Taking into account the nature of the Processing, Processor shall, at Controller’s cost, assist Controller  as Controller may reasonably require, to enable the Customer to comply with requests to exercise Data Subject rights under the Applicable UK and EU Data Laws.

6.2.           Processor shall:

6.2.1.       promptly notify Controller if Processor receives a request from a Data Subject under any Applicable UK and EU Data Laws with respect to Controller Personal Data; and

6.2.2.       not respond to that request except: i) on the written instructions of Controller; or ii) as required by Applicable UK and EU Data Laws to which Processor is subject, in which case Processor shall (to the extent permitted by Applicable UK and EU Data Laws) inform Controller of that legal requirement before Processor responds to the request.

7.     Personal Data Breach

7.1.           Processor shall promptly notify Controller if any Controller Personal Data is subject to any Personal Data Breach, and provide Controller with sufficient information to allow the Controller to meet any obligations to report to Supervising Authorities or inform the applicable Data Subjects of the Personal Data Breach under the Applicable UK and EU Data Laws.

7.2.           Processor shall co-operate, at the Controller’s cost, to assist Controller in the investigation, mitigation and remediation of each such Personal Data Breach.

8.     Data Protection Impact Assessment and Prior Consultation

Processor shall provide, at the Controller’s cost, reasonable assistance to Controller in performing any data protection impact assessments and/or relevant consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required by GDPR Articles 35 or 36, or equivalent provisions of any other Applicable UK and EU Data Laws, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9.     Deletion or Return of Controller Personal Data

9.1.           Subject to Section  9.2 of the Addendum, Processor shall at Controller’s request within thirty (30) days after the date of cessation of Services involving the Processing of Controller Personal Data (the “Cessation Date”), either; (i) give Controller the Controller Personal Data in the Processor’s usual format; or (ii) delete and ensure the deletion of all copies of Controller Personal Data.

9.2.           Processor (and Processor’s Subprocessors) may retain Controller Personal Data to the extent and for such period as is required by Applicable Laws, provided that Processor shall ensure the confidentiality of all such Controller Personal Data, and shall ensure that the Controller Personal Data are only retained only for the purpose(s) specified in the Applicable Laws requiring its storage.

9.3.           Processor may retain and use for its business purposes any aggregated and anonymous data created from or using Controller Personal Data, during and after termination of the Agreement.

10.   Audit Rights

10.1.        Subject to Sections 10.2 to 10.4, Processor shall make available to Controller on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and cooperate with audits, including inspections, by Controller or an auditor appointed by Controller in relation to the Processing of the Controller Personal Data by Processor.

10.2.        Information and audit rights of Controller shall only arise under Section 10.1 to the extent that the Agreement does not otherwise give Controller information and audit rights meeting the relevant requirements of Applicable UK and EU Data Laws.  Controller specifically acknowledges that in respect of Subprocessors, Processor would not be able to provide any wider audit rights than those granted to it by such Subprocessors).

10.3.        Controller when undertaking an audit shall give reasonable notice (being at least 21 days unless conducted on an emergency basis) to Processor with regard to any audit or inspection to be conducted under Section 10.1, and shall avoid (and ensure that each of its appointed auditors avoid) causing any damage, injury or disruption to Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection.

10.4.        Processor need not give access to its premises for the purposes of an audit or inspection under Section 10.1:

10.4.1.    to any individual unless he or she produces evidence of identity and authority to conduct an audit or inspection from Controller;

10.4.2.    outside normal business hours, unless the audit or inspection needs to be conducted on an emergency basis and Controller undertaking the audit has given notice to Processor of such emergency before the access outside normal business hours begins and Processor agrees that such emergency access is required; or

10.4.3.    more than once per year.

11.   Restricted Transfers

11.1.        This Section 11 establishes the parties’ compliance with Chapter V of the GDPR in relation to Restricted Transfers of Personal Data.

11.2.        Subject to Section 12.3, the parties agree that:

11.2.1.    where Controller makes an EEA Restricted Transfer of Controller Personal Data to Processor, such Restricted Transfer shall be governed by the EU Standard Contractual Clauses; and

11.2.2.     where Controller makes a UK Restricted Transfer of Controller Personal Data to Processor, such Restricted Transfer shall be governed by the UK Standard Contractual Clauses,

and the Controller and Processor shall comply in respect of such Restricted Transfer as if the parties had directly and separately entered into, fully executed and signed such an agreement whereby the transferring Controller is named therein as the data exporter and the Processor is named therein as the data importer.

11.3.        The parties shall comply with the Supplementary Measures for all Restricted Transfers.

11.4.        Processor shall ensure that before it commences any Restricted Transfer to a Subprocessor, the Subprocessor will ensure that the Restricted Transfer complies with Applicable UK and EU Data Laws, which may involve entering into enter into standard contractual clauses in compliance with Applicable UK and EU Data Laws.

12.   General Terms

12.1.        Governing Law and Jurisdiction.

12.1.1.    This Addendum and all obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in Section 16.1 of the Agreement except solely to the extent that: (i) Section 12.C of the UK Standard Contractual Clauses; or (ii) Clause 17 of the EU Standard Contractual Clauses, applies.

12.1.2.    The parties to this Addendum hereby submit to the choice of jurisdiction and venue stipulated in Section 16.1 of the Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity, except solely to the extent that: (i) Section 12.C of the UK Standard Contractual Clauses; or (ii) Clause 18 of the EU Standard Contractual Clauses, applies.

12.2.        Precedence. In the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing by the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.  In the event of any conflict or inconsistency between this Addendum and the UK Standard Contractual Clauses or the EU Standard Contractual Clauses, the UK Standard Contractual Clauses or the EU Standard Contractual Clauses (as applicable) shall prevail.

12.3.        Notwithstanding Section 16.11 of the Agreement, Processor may upon written (which includes electronic notice) to Controller, including but not limited to in the form of an email, notification to a user account or web link containing the proposed variation or modification hereunder, which identifies a method for the Controller to acknowledge agreement thereof, whether in the form of responsive email, or clicking a hyperlink or checkbox, or otherwise:

12.3.1.    make variations to the UK Standard Contractual Clauses and/or the EU Standard Contractual Clauses, to the extent required by any change in, or decision of a competent authority under, the Applicable UK and EU Data Laws, including by substituting any of the UK Standard Contractual Clauses or the EU Standard Contractual Clauses with any equivalent replacement clauses; and

12.3.2.    make any other variations to this Addendum that Processor reasonably considers to be necessary to address the requirements of any Applicable UK and EU Data Laws.

12.4.        It is highly recommended that Controller keep records of this Agreement, its exhibits, annexes and any variations or modifications thereto.  At the point of agreement, acceptance or acknowledgement, if electronic in nature, Controller will have the ability to download the full text of the variation, which shall display the method, or record, as well as the date of Controller’s agreement to the new/modified terms.

12.5.        If Processor gives notice under Section 12.3.1, Controller shall not unreasonably withhold or delay agreement to any variations to this Addendum, including using any electronic process described above, proposed by Processor for the purposes described in Section 12.3.1 or 12.3.2.

12.6.        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 make it valid and enforceable, 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.

ANNEX 1 – UK Standard Contractual Clauses

These UK Standard Contractual Clauses (the “Clauses”) between Ice Cream Social, Inc. (“Processor” or “Data Importer”), and User (“Controller” or “Data Exporter”), hereby amend and are incorporated into the agreement between Processor and Controller (“Agreement”) and its United Kingdom, European Union and Swiss Data Processing Addendum (“Addendum”) to which this annex is attached.  The Clauses shall apply to UK Restricted Transfers of Personal Data to the facilities of Processor.  Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement or the Addendum.  The scope of definitions for terms that are defined in these Clauses shall be limited to this annex.  Unless expressly modified below, the terms of the Agreement shall remain in full force and effect.

The parties hereby agree to the following 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 in respect of any Restricted Transfers of Personal Data subject to the UK GDPR.

Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

VERSION B1.0, in force 21 March 2022

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Table 4: Ending this Addendum when the Approved Addendum Changes

Part 2: Mandatory Clauses

Entering into this Addendum

1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
    1. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
    2. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
    3. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
15. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
16. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
17. In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

1. Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

8. Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

8. Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

1. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
2. References to Regulation (EU) 2018/1725 are removed;
3. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
4. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
5. Clause 13(a) and Part C of Annex I are not used;
6. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
7. In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

1. Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

1. Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

11. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved Addendum which:
19. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
20. reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
    • its direct costs of performing its obligations under the Addendum; and/or
    • its risk under the Addendum,

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Alternative Part 2 Mandatory Clauses:

 ANNEX 2

EU Standard Contractual Clauses

These EU Standard Contractual Clauses (the “Clauses”) between Ice Cream Social, Inc. (“Processor” or “Data Importer”), and User (“Controller” or “Data Exporter”), hereby amend and are incorporated into the agreement between Processor and Controller (“Agreement”) and its United Kingdom, European Union and Swiss Data Processing Addendum (“Addendum”) to which this annex is attached.  The Clauses shall apply to EU Restricted Transfers of Personal Data to the facilities of Processor.  Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement or the Addendum.  The scope of definitions for terms that are defined in these Clauses shall be limited to this annex.  Unless expressly modified below, the terms of the Agreement shall remain in full force and effect.

The parties hereby agree to the following 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 Annex I in respect of any Restricted Transfers of Personal Data subject to the EU GDPR.

Should processing of Controller Personal Data be subject to Swiss law, in particular due to the establishment of the Data Exporter in Switzerland, any reference to the GPDR shall be deemed to be a reference to the Swiss Federal Act on Data Protection (FADP) as well as its applicable ordinances. Therefore, definitions given to the terms “personal data” and “data subject” shall, in any case, have the meaning given to them in the FADP. The “special categories of data” shall have the meaning of “sensitive data” according to the FADP.

SECTION I

Clause 1 – Purpose and scope

(a)             The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)[1] for the transfer of personal data to a third country.

(b)             The Parties:

(i)              the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii)             the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c)             These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d)             The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

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 – [Not used]

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 fifteen 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.

(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[4];

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

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

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

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

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

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 Spain.

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 Spain.

(c)             A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d)             The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

 ANNEX I of EU Standard Contractual Clauses

1. 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]

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

1. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

The general public that may either share or receive offers/information related to campaigns of the User, or other data subjects as directed by the User

Categories of personal data transferred

Name, title, gender, email address, telephone number, technical data including data related to how individuals interact with the User’s campaign(s), marketing preferences, or other Personal Data as directed by the User

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.

As directed by the User

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

Continuous for the duration of the Agreement and in accordance with the provisions of the Agreement in relation to any post-termination processing

Nature of the processing

The Personal Data will be processed as needed for the services described in the Agreement, including for conducting campaigns. User acknowledges that Processor is established in the United States. Where the User instructs Processor, it may disclose Personal Data to third parties (such as payment processors) who act on behalf of the User.

Purpose(s) of the data transfer and further processing

The purpose of processing of personal data is the provision of the Services (as described in the Agreement).

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

As set out pursuant to Section 9 of the Addendum.

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

Transfer to sub-processors are to enable the data importer to provide the Services, the subject matter, nature and duration of which are set out in this Agreement (including this Annex).

1. COMPETENT SUPERVISORY AUTHORITY

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

The data exporter’s competent supervisory authority will be determined in accordance with the EU GDPR.

ANNEX II of EU Standard Contractual Clauses

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

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Measures to be applied in accordance with the Information Security & Controls Addendum available at https://icecreamsocial.io/information-security

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter

Measures to be applied in accordance with the Information Security & Controls Addendum available at https://icecreamsocial.io/information-security

ANNEX 3

Supplementary Measures

1. Where a Restricted Transfer is made, the following additional provisions shall apply in respect of such Restricted Transfer:

• The parties shall ensure that, any transfer involving Controller Personal Data to the other party under this Agreement has been encrypted to the following standard (or higher): AES-256 for data at rest and TLS 1.2 for data in motion.
• If the data importer receives any request or order by a government department or other public authority for disclosure of Controller Personal Data (or any encryption key which may decrypt Controller Personal Data), it shall promptly notify the data exporter. If the data importer is unable to notify the data exporter before complying with any such order, the data importer shall, in any event, comply with its obligations set out in Clause 16(a) of the UK Standard Contractual Clauses; or Clause 16(a) of the EU Standard Contractual Clauses, and inform the data exporter (without giving specific details) that it is no longer able to comply with all of the guarantees provided for under the applicable UK Standard Contractual Clauses or EU Standard Contractual Clauses, so that the transfer of data can be suspended.
• The data importer has, to date, not received any requests from any public authorities or law enforcement agencies in relation to the Controller Personal Data.
• The data importer shall implement (to the extent not already in place) the following organisational measures:
  • the adoption of internal policies with clear allocation of responsibilities for data transfers, reporting channels and standard operating procedures for cases of covert or official requests from public authorities to access the data;
  • specific training procedures for personnel in charge of managing requests for access to personal data from public authorities. Such training will take into account the legislation and regulations to which the data importer is subject;
  • the adoption of strict and granular data access and confidentiality policies and best practices, based on a strict need-to-know principle, monitored with regular audits and enforced through disciplinary measures;
  • the adoption of best practices to appropriately and timely involve and provide access to information to the legal and internal auditing teams on matters related to international transfers of personal data transfers, who shall be consulted on the necessity of the transfer and the additional safeguards, if any;
  • the adoption of strict data security and data privacy policies, based on international standards and industry best practices; and
  • the regular review of internal policies to assess the suitability of the implemented supplementary measures and identify and implement additional or alternative solutions when necessary, to ensure that an equivalent level of protection to that guaranteed within the UK and EEA of the personal data transferred is maintained.

[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] 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.