Data Processing Addendum

Last Updated: 06-01-2023

This data processing addendum (“DPA”) supplements and modifies the End-User Licensing Agreement (“EULA”) governing the use of KARTRA Software. This DPA is pursuant to the General Data Protection Regulation (“GDPR”) and in particular addresses Article 28 (Processor Terms) and incorporates Standard Contractual Clauses for Controller to Processor transfers of Personal Data to third countries.
 
 This Data Processing Addendum (“Addendum“) forms an integral part of the End User License Agreement (“EULA“) governing the use of the KARTRA Software platform as between each KARTRA Software end-user or licensee (“Customer / Controller“) acting with respect to its own data and on behalf of data it controls for its own customers and leads; and (ii) Genesis Digital LLC (acting on its own behalf and as agent for any of its Affiliates) (”KARTRA” as defined in the EULA).
 
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the EULA. Except as modified below, the terms of the EULA shall remain in full force and effect.
 
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the EULA. Except where the context requires otherwise, references in this Addendum to the EULA are to the EULA as amended by, and including, this Addendum.

1. Definitions

1 .1    “Commission“, “Controller“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, “Process/Processing“, “Processor“, “Special Categories of Data“, and “Supervisory Authority” shall respectively have the meanings set forth in the GDPR with regard to the processing of Personal Data and the free movement of such data and their cognates shall be construed accordingly;
1 .2     In this Addendum, the following additional terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.2.1    “Applicable Laws” means (a) means any statute, regulation, executive order, and other rule or rules issued by a government office or agency that have binding legal force and are generally applicable to Personal Data or the provision of the Services with respect to Personal Data, including GDPR, UK GDPR, Data Protection Act 2018, Canada PIPEDA, Switzerland revFADP, California Privacy Laws, and the state and federal laws of the United States; and (b) any other applicable law with respect to any Customer/Controller Personal Data in respect of which KARTRA is subject to any other Data Protection Laws;
1.2.2     “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with a Party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or othewrwise;
1.2.3    “KARTRA” means Genesis Digital or any of its Affiliates;
1.2.4    “Customer/Controller Personal Data” means any Personal Data processed by KARTRA or a Contracted Processor on behalf of KARTRA pursuant to or in connection with the EULA or Customer/Controller’s use of KARTRA Software;
1.2.5    “Contracted Processor” means a Processor or a Subprocessor contracted by KARTRA;
1.2.6    “Data Exporter” means the party who transfers the Personal Data, as a Controller, or as a Processor on behalf of the Controller, in accordance with the terms of the Standard Contractual Clauses provided in Annex 2 or as amended;
1.2.7 “Data Importer” means the party who agrees to receive Personal Data from the Data Exporter, in accordance the terms of the Standard Clauses and instructions from the Data Exporter;
1.2.8   “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.2.9   “EEA” means the European Economic Area;
1.2.10   “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.2.11    “GDPR” means EU General Data Protection Regulation 2016/679;
1.2.12    “Restricted Transfer” means:
1.2.12.1    a transfer of Customer/Controller Personal Data from KARTRA to a Contracted Processor; or
1.2.12.2    an onward transfer of Customer/Controller Personal Data from a Contracted Processor to a different Contracted Processor, or an intracompany transfer between two locations of a particular Contracted Processor,

In each case, where such transfer would otherwise be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses provided herein below. For the avoidance of doubt: (a) without limitation to the generality of the foregoing, the parties to this Addendum intend that transfers of Personal Data from the UK to the EEA or from the EEA to the UK, following any exit by the UK from the European Union shall not be Restricted Transfers until such time as it is formally determined by an appropriate authority that such transfers are prohibited by Data Protection Laws of the UK or EU Data Protection Laws (as the case may be) in the absence of the Standard Contractual Clauses provided herein; and (b) where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from within the European Union to a country (such as Switzerland) or under a scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer.
 

1.2.13    “Services” means the services and other activities to be supplied to or carried out on behalf of Customer/Controller by KARTRA pursuant to the EULA;
1.2.14    “Standard Contractual Clauses” or “Controller-To-Processor Clauses” means the Standard Contractual Clauses between controllers and processors for Data Transfers, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, and currently located at the bottom of this addendum and also set out in Annex 2, as amended in that Annex and/or under section 13.4;
1.2.15    “Subprocessor” means any person (excluding an employee of Customer/Controller or any of its sub-contractors) appointed by a Contracted Processor to Process Personal Data on behalf of KARTRA in connection with the EULA.
1.2.16     “California Privacy Laws” means the California Consumer Privacy Act of 2018 and California Privacy Rights Act of 2023.
1.2.17    “revFADP” means Switzerland’s revised Federal Data Protection Act of 2023.
1.2.18    “PIPEDA” means Canada’s Personal Information Protection and Electronic Documents Act of 2001.
1 .3    The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

2. Authority and Representations In Connection Therewith

KARTRA warrants and represents that before any Contracted Processor processes any Customer/Controller Personal Data on behalf of KARTRA, KARTRA will use commercially reasonable efforts to ensure that Contracted Processor has been duly and effectively authorized (or subsequently ratified) to process such data in a manner compliant with the requirements of the GDPR. Customer/Controller warrants and represents that, Customer/Controller is lawfully in possession of such data and has a lawful basis for providing such data to KARTRA for processing or for authorizing KARTRA to process the Customer/Controller Personal Data on behalf of Customer/Controller under this Addendum.

3. Processing of Customer/Controller Personal Data

3.1    KARTRA shall and each Contracted Processor shall be obligated to:
3.1.1    comply with all applicable Data Protection Laws in the Processing of Customer/Controller Personal Data; and
3.1.2    not Process Customer/Controller Personal Data other than on the relevant Customer/Controller’s documented instructions unless Processing is authorized under / by Applicable Laws to which KARTRA or the Contracted Processor is subject. In the latter case KARTRA shall where reasonable or to the extent required by Applicable Laws inform the Customer/Controller before the relevant Processing of that Personal Data.
3.2    Customer/Controller:
3.2.1    shall instruct KARTRA (and authorizes KARTRA and each Contracted Processor to instruct each Subprocessor) to:
3.2.1.1    Process Customer/Controller Personal Data; and
3.2.1.2    in particular, transfer Customer/Controller Personal Data to or from any country or territory, as reasonably necessary for the provision of the Services and consistent with the EULA; and
 

3.2.2    shall obtain any and all required consents with respect to any data collected by it, or with respect to which it instructs KARTRA or any Contracted Processor to act on its behalf
3.2.3    warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 3.2.1 on behalf of itself and any Customer/Controller Affiliate.
3.3    Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Customer/Controller Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). KARTRA may make reasonable amendments to Annex 1 by written notice to Customer/Controller from time to time, as KARTRA reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum. 

4. Customer/Controller and Customer/Controller Affiliate Personnel

KARTRA shall take reasonable steps to ensure the reliability of any of its employees, agents, or contractors, and those of any Contracted Processor who may have access to the Customer/Controller Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer/Controller Personal Data, as strictly necessary for the purposes of the EULA, or to carry out the Services in compliance with Applicable Laws in the context of that individual’s duties to KARTRA or the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
 

5. Security

5.1    Taking into account the state of the art, the costs of implementation, practicality, and the nature, scope, context, purposes of Processing as well as the risks to the rights and freedoms of natural persons, KARTRA shall in proportion thereto implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
 
5.2    In assessing the appropriate level of security, KARTRA shall take account the likely risks that are presented by Processing, in particular from the perspective of a Personal Data Breach.
 

6. Subprocessing

6.1    Customer/Controller authorizes KARTRA to appoint Subprocessors in accordance with this section 6 and any restrictions in the EULA, and to permit each Subprocessor duly appointed in accordance with this section 6 to appoint further Subprocessors.
 
6.2    KARTRA may continue to use those Subprocessors already engaged by KARTRA as at the date of this Addendum, subject to KARTRA in each case as soon as practicable meeting the obligations set out in section 6.4.
 
6.3    To the extent required under the GDPR, KARTRA shall give Customer/Controller prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. Such appointment shall be effective unless within 10 (ten) days of receipt of such notice, Customer/Controller provides KARTRA written objections (on reasonable grounds) to the proposed appointment. KARTRA shall not appoint (or disclose any Customer/Controller Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by Customer/Controller and Customer/Controller has been provided\ with a reasonable written explanation of the steps taken.
 
6.4    With respect to each Subprocessor, KARTRA shall:
6.4.1    before the Subprocessor first Processes Customer/Controller Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence under the circumstances to ensure that the Subprocessor is capable of providing the level of protection for Customer/Controller Personal Data required by the Applicable Law, this Addendum, or under the EULA;
6.4.2 ensure that the arrangement between on the one hand, KARTRA, or the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer/Controller Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
6.4.3    if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand, KARTRA, or the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Customer/Controller Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with KARTRA, or the relevant intermediate Subprocessor; and
6.4.4    provide to Customer/Controller for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum, or Applicable Law) as Customer/Controller may request from time to time.
6.5    Customer/Controller and each Customer/Controller Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Customer/Controller Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Customer/Controller.

7. Data Subject Rights

7.1    Nothing herein shall relieve Customer/Controller from affording any required right to any Data Subject including any requirement to obtain adequate consent from a Data subject prior to collection of Personal Data.
 
7.2    Taking into account the nature of the Processing, KARTRA shall assist Customer/Controller by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer/Controller’s obligations, as reasonably understood by KARTRA, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
 
7.3    KARTRA shall:
7.3.1    promptly notify Customer/Controller if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer/Controller Personal Data; and
7.3.2    ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer/Controller or as required by Applicable Laws to which the Contracted Processor is subject, in which case KARTRA shall to the extent permitted by Applicable Laws inform Customer/Controller of that legal requirement before the Contracted Processor responds to the request.

8. Personal Data Breach

8.1   KARTRA shall notify Customer/Controller without undue delay upon KARTRA, a Contracted Processor or any Subprocessor becoming aware of a Personal Data Breach affecting Customer/Controller Personal Data, providing Customer/Controller with sufficient information to allow Customer/Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
 
8.2    KARTRA shall co-operate with Customer/Controller and take such reasonable commercial steps as are directed by Customer/Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach. 

9. Data Protection Impact Assessment and Prior Consultation

To the extent required under Applicable Law, KARTRA shall provide reasonable assistance to Customer/Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer/Controller reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer/Controller Personal Data by, and taking into account the nature of the Processing and information available to the Contracted Processors.

10. Deletion or return of Customer/Controller Personal Data

10.1    Subject to sections 10.2 and 10.3 Customer/Controller and each Customer/Controller Affiliate shall promptly and in any event within 21 (twenty-one) days of the date of cessation of any Services involving the Processing of Customer/Controller Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Customer/Controller Personal Data. For the sake of clarity, for purposes of this Section 10 “delete” means redacting, blocking or restricting access, permanently removing, or obliterating such that it cannot be recovered or reconstructed, as circumstances reasonably permit and Applicable Law permits.
 
10.2    Subject to section 10.3, Customer/Controller may in its discretion request, by written notice to KARTRA within 21 (twenty-one) days of the Cessation Date, that KARTRA (a) return a complete copy of all Customer/Controller Personal Data to KARTRA by secure file transfer in such format as is reasonably requested by Customer/Controller or in which the data are stored in the normal course of business; and (b) delete and procure the deletion of all other copies of Customer/Controller Personal Data Processed by any Contracted Processor. KARTRA shall comply with any such written request within 30 (thirty) days of the Cessation Date.
 
10.3    Each Contracted Processor may retain Customer/Controller Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws. KARTRA shall reasonably ensure that such Customer/Controller Personal Data is only Processed or retained as provided herein as necessary for the purpose(s) specified in the Applicable Laws.
 
10.4    Where requested in writing, KARTRA shall provide written confirmation to Customer/Controller that it has fully complied with this section 10 within 30 (thirty) days of the Cessation Date.

11. Audit rights

11.1    Subject to the provisions of this Section, KARTRA shall make available to Customer/Controller on request all information reasonably necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by Customer/Controller or an auditor appointed by Customer/Controller in relation to the Processing of the Customer/Controller Personal Data by the Contracted Processors.
 
11.2    Information and audit rights of the Customer/Controller only arise under section 11.1 to the extent that the EULA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable,
article 28(3)(h) of the GDPR).
 
11.3    A Customer/Controller may only mandate an auditor for the purposes of section 11.1 if the auditor is identified at least sixty (60) days in advance in writing and approved by KARTRA. KARTRA shall not unreasonably withhold or delay approval of an auditor. Reasonable grounds for refusing Customer/Controller’s choice of auditor shall be provided in writing, after which a new auditor shall be identified.
 
11.4    Audits shall be conducted only by agreement on reasonable notice of any audit or inspection to be conducted hereunder and shall use best efforts (and ensure that each of its mandated auditors makes such efforts) to avoid causing (or, if it cannot avoid, to minimize) any damage, injury, delay, or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection: 
11.4.1    to any individual unless he or she produces reasonable evidence of identity and authority;
11.4.2    outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer/Controller has given notice to KARTRA that this is the case before attendance outside those hours begins; or
11.4.3    for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any year period, except for any additional audits or inspectaions which:
11.4.3.1    Customer/Controller undertaking an audit reasonably considers necessary because of genuine concerns as to KARTRA’s compliance with this Addendum; or
11.4.3.2    Customer/Controller is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Customer/Controller undertaking an audit has identified its concerns or the relevant requirement or request in its notice to KARTRA of the audit or inspection.

12. Restricted Transfers

12.1    Subject to section 12.3, Customer/Controller (as “Data Exporter”) and KARTRA and each of its Contracted Processor, as appropriate, (as “Data Importer”); or KARTRA (as Data Exporter”) and each Contracted Processor or Customer/Controller have entered and/or hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from Customer/Controller to KARTRA or its Contracted Processor or from KARTRA to Customer/Controller or a Contracted Processor.
 
12.2    The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
12.2.1    the Data Exporter becoming a party to them;
12.2.2    the Data Importer becoming a party to them; and
12.2.3    commencement of the relevant Restricted Transfer. 
12.3    Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining further or additional consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
 
12.4    KARTRA warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor entry into the Standard Contractual Clauses under section 12.1, and agreement to variations to those Standard Contractual Clauses made under section 13.4.1, as agent for and on behalf of that Subprocessor will have been duly and effectively authorized (or subsequently ratified) by that Subprocessor.

13. General Terms

Governing law and jurisdiction

13.1    Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
13.1.1    the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the EULA 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; and
13.1.2    this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the EULA.

Order of Precedence 

13.2    Nothing in this Addendum alters either party’s obligations under the EULA in relation to the protection of Personal Data or permits either party to Process (or to permit the Processing of) Personal Data in a manner which is prohibited by the EULA or Applicable Law. In the event of any conflict or inconsistency between this Addendum, and/or the EULA, and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
 
13.3    Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the EULA and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
 
Changes in Data Protection Laws
 
13.4    KARTRA may:

13.4.1    by at least 30 (thirty) calendar days’ written notice to Customer/Controller from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
13.4.2    propose any other variations to this Addendum which KARTRA reasonably considers to be necessary to address the requirements of any Data Protection Law.
13.5    If KARTRA gives notice under section 13.4.1:
13.5.1    The parties shall promptly co-operate (and ensure that any affected Contracted Processors and/or Subprocessors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under section 6.4.3; and
13.5.2    Customer/Controller shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by KARTRA to protect the Contracted Processors against additional risks associated with the variations made hereunder.
13.6    If KARTRA gives notice under section 13.4.2, it shall propose reasonable variations with a view to implementing those or reasonable alternative variations designed to address the requirements identified in KARTRA’s notice as soon as is reasonably practicable.
 
13.7    Neither KARTRA nor Customer/Controller shall require the consent or approval of any Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise. 
 
Severance
 
13.8    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.

14. Restricted Transfers Subject to the Data Protection Laws of the United Kingdom

This Section applies with respect to any transfer of Personal Data that is subject to the data protection laws of the United Kingdom (including the UK GDPR) as defined in the UK Addendum (the current version of which is available here: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf ) or any onward transfer of such Personal Data to Processor located in a country outside the United Kingdom for which there is no Adequacy Decision. In such cases, the parties agree that: (a) the attached Module 1 of the 2021 SCCs, together with the UK Addendum, including Part 2 “Mandatory Clauses,” shall apply in full;  (b) Table 1 of the UK Addendum, the names of the parties, their roles, and their details shall be considered populated by the information set out in Annex I.A; (c) Tables 2 and 3 of the UK Addendum shall be considered populated by the applicable version of the 2021 SCCs appended to this DPA, including the information set out in the Annexes of the 2021 SCCs; (d) For the purposes of Table 4 of the UK Addendum, neither party may end the UK Addendum as a result of approved amendments to the UK Addendum by the Data Protection Supervisory Authority. Notwithstanding the foregoing, the UK Addendum will not apply to the extent the transfer is covered by an Adequacy Decision or if an alternative recognized compliance standard has been adopted by the United Kingdom which legitimizes such transfers.

ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

This Annex 1 includes certain details of the Processing of Customer/Controller Personal Data as required by Article 28(3) GDPR.
 
Subject matter and duration of the Processing of Customer/Controller Personal Data
 
The subject matter and duration of the Processing of the Customer/Controller Personal Data are set out in the EULA and this Addendum and relate to KARTRA’s obligations to provide the requested Services in connection with the KARTRA Software.
 
The nature and purpose of the Processing of Customer/Controller Personal Data
 
KARTRA processed Personal Data in order to provide the Services contemplated in the EULA in connection with the use of the KARTRA software. Among the purposes of processing are to monitor transactions (including purchases, payments, and refunds), to track helpdesk tickets and/or support requests as the case may be, and responses thereto, to provide access to memberships, associated lists, and associated sequences of actions, to enable communications in connection with any of the foregoing.
 
The types of Customer/Controller Personal Data to be Processed
 
The types of Personal Data to be processed by KARTRA include Name, Email, Phone, Address, Country, IP address, and Username
 
The categories of Data Subject to whom the Customer/Controller Personal Data relates
 
Categories to which the Personal Data to be processed relate include demographic/external data, financial data, historical data, internal data (including preferences and interests); and social data.
 
Except where specifically required for the provision of contracted services or as incidental to the above, KARTRA does not collect or track data racial or ethnic origin, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation or any other Special Category of Data.
 
The obligations and rights of KARTRA and Customer/Controller
 
The obligations and rights of KARTRA and KARTRA Affiliates are set out in the EULA and this Addendum.

ANNEX 2: STANDARD CONTRACTUAL CLAUSES

These Clauses shall be deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (by the Commission to or of the equivalent contractual clauses approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law otherwise).  

Standard Contractual Clauses

Controller-to-Processor Transfers.
This attachment is attached to and forms part of the GDPR Data Processing Addendum, or other agreement between Customer and KARTRA governing the processing of Customer Data (the “Addendum”). Unless otherwise defined in this attachment, capitalized terms used in this attachment have the meanings given to them in the Addendum. 
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 Annex 1.
 

SECTION I
 

Clause 1
Purpose and scope
 

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

(b)    The Parties:
(i)    the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii)    the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c)    These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d)    The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2
Effect and invariability of the Clauses

(a)    These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b)    These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679. 

Clause 3
Third-party beneficiaries

(a)    Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i)    Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii)    Clause 8.1(b), 8.9(a), (c), (d) and (e); 
(iii)    Clause 9(a), (c), (d) and (e); 
(iv)    Clause 12(a), (d) and (f);
(v)    Clause 13;
(vi)    Clause 15.1(c), (d) and (e);
(vii)    Clause 16(e);
(viii)    Clause 18(a) and (b).
(b)    Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
 

Clause 4
Interpretation

(a)    Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b)    These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c)    These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
 

Clause 5
Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
 

Clause 6
Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
 

Clause 7 – Optional
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 organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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 organizational 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 authorized 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 (¹) (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 defense 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.

 ¹The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

Clause 9
Use of sub-processors

(a)     The data importer has the data exporter’s general authorization 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 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b)     Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (²) 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.

²This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

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 authorized 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 organizational 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.

[OPTION: The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body (³) at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.]

 (b)    In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c)    Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i)    lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii)    refer the dispute to the competent courts within the meaning of Clause 18.
(d)    The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e)    The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f)    The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

³The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.

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 behavior 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.

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.

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
(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.
(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.
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 the Grand Duchy of Luxembourg.

Clause 18
Choice of forum and jurisdiction

(a)    Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b)    The Parties agree that those shall be the courts of the district of Luxembourg City.
(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.

ANNEX I

A.   LIST OF PARTIES

Data exporter(s): 

Name: The entity identified as “Customer” in the Addendum. 
Address: The address for Customer associated with its KARTRA account or as otherwise specified in the Addendum or the Agreement. 
Contact person’s name, position and contact details: The contact details associated with Customer’s account, or as otherwise specified in the Addendum or the Agreement. 
Activities relevant to the data transferred under these Clauses: The activities specified in Annex 1 of the Addendum. 
Signature and date: By using the KARTRA services to transfer Customer Data to Third Countries, the data exporter will be deemed to have signed this Annex I.
Role (controller / processor): Controller

Data importer(s): 
Name: “KARTRA” as identified in the Addendum. 
Address: The address for KARTRA specified in the Agreement. 
Contact person’s name, position and contact details: The contact details for KARTRA are specified in the Addendum or the Agreement. 
Activities relevant to the data transferred under these Clauses: The activities specified in Annex 1 of the Addendum. 
Signature and date: By transferring Customer Data to Third Countries on Customer’s instructions, the data importer will be deemed to have signed this Annex I. 
Role (controller / processor): Processor

B.   DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred. 
Categories of data subjects are specified in Annex 1 of the Data Processing Addendum. 

Categories of personal data transferred. 
The personal data is described in Annex 1 of the Data Processing Addendum. 

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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

The data exporter might include sensitive personal data in the personal data described in Annex 1 of the Data Processing Addendum. 

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis) 
Personal data is transferred in accordance with Customer’s instructions as described in Annex 1 of the Data Processing Addendum. 

Nature of the processing 
The nature of the processing is described in Annex 1 of the Data Processing Addendum. 

Purpose(s) of the data transfer and further processing 
To provide the Services. 

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period. 
Not applicable because the data exporter determines the duration of processing in accordance with the terms of the Addendum. 

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing.
The subject matter, nature and duration of the processing are described in Annex 1 of the Data Processing Addendum.
 

C.   COMPETENT SUPERVISORY AUTHORITY

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

ANNEX II

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

Description of the technical and organizational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

Information Security Program. KARTRA will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the KARTRA Network, and (c) minimize security risks, including through risk assessment and regular testing. KARTRA will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:

1.    Data transmission. All data in transmission is protected using end-to-end strong encryption.
2.    Network security.  The KARTRA Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. KARTRA will maintain access controls and policies to manage what access is allowed to the KARTRA Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. KARTRA will maintain corrective action and incident response plans to respond to potential security threats.
3.    Certifications. Multiple certifications held by cloud service provider/Sub-processor including:
(a)    the certificates issued for the ISO 27001 certification, the ISO 27017 certification, the ISO 27018 certification, and the ISO 27701 certification (or the certifications or other documentation evidencing compliance with such alternative standards as are substantially equivalent to ISO 27001, ISO 27017, ISO 27018, and ISO 27701); and (ii) the
(b)    System and Organization Controls (SOC) 1 Report, the System and Organization Controls (SOC) 2 Report and the System and Organization Controls (SOC) 3 Report (or the reports or other documentation describing the controls implemented by Sub-processor that replace or are substantially equivalent to the SOC 1, SOC 2 and SOC 3).
4.    Storage of data.  All data at rest is encrypted using strong encryption at the hardware level.  Key management strictly enforced.
5.    Regular testing and perimeter scans.  Regular testing and perimeter scans are run on all networks and systems at regular intervals to ensure network security. 
6.    Physical security. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. KARTRA also maintains electronic intrusion detection systems designed to detect unauthorized access to the Facilities, including monitoring points of vulnerability (for example, primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.
7.    Data portability and erasure.  KARTRA will provide data portability and will remove data that is requested to be removed by the customer within 60 days of the request.
8.    Continued evaluation. KARTRA will conduct periodic reviews of the security of its KARTRA Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. KARTRA will continually evaluate the security of its KARTRA Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

ANNEX III

LIST OF SUB-PROCESSORS

Amazon (AWS)
DPO/Contact:
https://aws.amazon.com/
https://aws.amazon.com/compliance/eu-data-protection
 
Sendgrid, Inc.
DPO/Contact: Michael Tognetti, SVP & General Counsel
1801 California Street’ Suite 500, Denver, CO 80202
https://sendgrid.com/
 
Pusher Ltd.
DPO/Contact:
28 Scrutton Street, London, EC2A 4RP
https://pusher.com/
https://pusher.com/legal/data-protection
 
Stripe
DPO/Contact: Adi Gilad, dpo@stripe.com
510 Townsend street, San Francisco, CA 94103
https://stripe.com
 
PayPal
DPO/Contact: Gareth Jones
2211 North First street, San Jose, CA 95131
https://www.linkedin.com/in/ghvjones/

Mailgun
DPO/Contact: 
112 E Pecan St. #1135
San Antonio, TX 78205
privacy@mailgun.com
https://www.mailgun.com/dpa/

Quriobot
DPO/Contact:
Keienbergweg 97
1101 GG Amsterdam
The Netherlands
privacy@quriobot.com

FingerprintJS, Inc.
DPO/Contact: Valentin Vasilyev
1440 W. Taylor St #735, Chicago, IL 60607, USA
dpo@fingerprint.com