This Data Processing Addendum ("Addendum") forms part of the Terms of Service (the "Agreement") between Everworks Ltd T/A Qualio and its Affiliates ("Qualio" or “Processor”) and Qualio customers ("Customer" or “Controller”) (collectively the "Parties").
1.1. Subject Matter. This Addendum reflects the Parties' commitment to abide by Applicable Data Protection Law(s) concerning the Processing of Customer Personal Data in connection with the Services provided by Qualio pursuant to the Agreement. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the Agreement. If and to the extent language in this Addendum or any of its Exhibits conflicts with the Agreement, this Addendum shall control.
1.2. Duration and Survival. This Addendum will become legally binding upon the Effective Date of the Agreement. Qualio will Process Customer Personal Data until the relationship terminates as specified in the Agreement. Qualio's obligations and Customer's rights under this Addendum will continue in effect so long as Qualio Processes Customer Personal Data.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
| Affiliate | Any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Qualio at any time during the term of this Agreement, where "control" means the direct or indirect ownership of fifty (50) percent or more of: (1) the ownership interests in the controlled entity, or (2) the shares or interests that are entitled to vote for the directors of the controlled entity, or (3) the actual ability to direct and control the management of the controlled entity. |
| Applicable Data Protection Law(s) | The relevant data protection and data privacy laws, rules and regulations applicable to the Processing of Customer Personal Data in connection with Qualio’s provision of Services under the Agreement. "Applicable Data Protection Law(s)" shall include, but not be limited to, the EU General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR"), the Swiss Federal Act of 19 June 1992 on Data Protection and the UK Data Protection Act 2018. |
| Customer Personal Data | Personal Data Processed by Qualio pertaining to Customer's business and related to individuals located in the European Economic Area, Switzerland and the United Kingdom. The Customer Personal Data and the specific uses of the Customer Personal Data are detailed in Exhibit A attached hereto. |
| Controller or Customer | The natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data. |
| Personal Data | Shall have the meaning assigned to the terms "personal data" or "personal information" under Applicable Data Protection Law(s). |
| Process, Processes, or Processing | Any operation or set of operations which is performed on data or sets of data, whether by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction. |
| Processor | A natural or legal person, public authority, agency, or other body that Processes Customer Personal Data on behalf of the Customer subject to this Addendum. |
| Security Incident(s) | The breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data Processed by Qualio. |
| Services | Any and all services that Qualio provides pursuant to the Agreement. |
| Third Party(ies) | Qualio's authorized contractors, agents, vendors, and third-party service providers (i.e., sub-processors) that Process Customer Personal Data. |
Customer Personal Data shall be processed in compliance with the terms of this Addendum and all Applicable Data Protection Law(s). Qualio and its Third Parties shall Process Customer Personal Data only in accordance with the documented instructions of Customer or as specifically authorized by this Addendum, the Agreement or any applicable Order Form. Qualio will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer's instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer's instructions.
To the extent necessary to fulfill Qualio's contractual obligations under the Agreement or any Order Form, Customer hereby provides general authorization for: (i) Qualio to engage Third Parties; and (ii) Third Parties to engage sub-processors. Any Third Party Processing of Customer Personal Data shall be consistent with Customer's documented instructions and comply with all Applicable Data Protection Law(s).
Qualio agrees to: (i) enter into a written agreement with Third Parties regarding such Third Parties' Processing of Customer Personal Data that imposes on such Third Parties (and their sub-processors) data protection and security requirements for Customer Personal Data that are no less protective than those imposed upon Qualio in this Addendum; and (ii) remain responsible to Customer for Qualio's Third Parties' (and their sub-processors if applicable) failure to perform their obligations with respect to the Processing of Customer Personal Data.
The current list of Third Parties that Process Customer Personal Data on behalf of Qualio is available through the following link in Qualio’s platform for active customers: Subproccesors List. Prior to engaging any new Third Parties that Process Customer Personal Data, Qualio will notify Customer via email and/or through the Qualio platform to which active customers have access, and allow Customer thirty (30) days to object. If Customer has legitimate objections to the appointment of any new Third Party, the parties will work together in good faith to resolve the grounds for the objection for no less than thirty (30) days, and failing any such resolution, Customer may terminate the part of the service performed under the Agreement that cannot be performed by Qualio without use of the objectionable Third Party. For a termination by Customer in accordance with the terms of the preceding sentence, Qualio shall refund the pro-rated portion of any pre-paid fees to Customer in respect of the terminated part of the Service.
Any person or Third Party authorized to Process Customer Personal Data must agree to maintain the confidentiality of such information or be under an appropriate statutory or contractual obligation of confidentiality.
Qualio agrees to comply with all reasonable instructions from Customer related to any requests from individuals exercising their rights in Personal Data granted to them under Applicable Data Protection Law(s) ("Privacy Request"). At Customer's request and without undue delay, Qualio agrees to assist Customer in answering or complying with any Privacy Request in so far as it is possible.
Qualio agrees to provide reasonable assistance at Customer's expense to Customer where, in Customer's judgment, the type of Processing performed by Qualio is likely to result in a high risk to the rights and freedoms of natural persons (e.g., systematic and extensive profiling, Processing sensitive Personal Data on a large scale and systematic monitoring on a large scale, or where the Processing uses new technologies) and thus requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
Qualio agrees to keep records of its Processing in compliance with Applicable Data Protection Law(s) and provide any necessary record to Customer to demonstrate compliance upon reasonable request.
Customer authorizes Qualio and its Third Parties to transfer Customer Personal Data as required by Applicable Data Protection Law(s). Such measures shall include:
11.1. Cross-Border Transfers of Personal Data. Customer authorizes Qualio and its Third Parties to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland and the United Kingdom to any country in which Qualio or any Third Party operates. Any cross-border transfer of Customer Personal Data must be supported by an approved adequacy mechanism.
11.2. Standard Contractual Clauses. Qualio and Customer will use the Standard Contractual Clauses in Exhibit B as the adequacy mechanism supporting the transfer and Processing of Customer Personal Data.
Qualio agrees to implement appropriate technical and organizational measures designed to protect Customer Personal Data as required by Applicable Data Protection Law(s) (the "Information Security Program"). Such measures shall include:
12.1. Pseudonymization of Customer Personal Data where appropriate and encryption of Customer Personal Data in transit and at rest;
12.2. The ability to ensure the ongoing confidentiality, integrity and availability of Qualio's Processing and Customer Personal Data;
12.3. The ability to restore the availability of, and access to, Customer Personal Data in the event of a physical or technical incident; and
12.4. A process for regularly evaluating and testing the effectiveness of the Qualio Information Security Program to ensure the security of Customer Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access.
13.1. Security Incident Procedure. Qualio will deploy and follow policies and procedures to detect, respond to and otherwise address Security Incidents including procedures to: (i) identify and respond to Security Incidents, mitigate harmful effects of Security Incidents, document Security Incidents and their outcomes; and (ii) restore the availability or access to Customer Personal Data in a timely manner.
13.2. Notice. Qualio agrees to provide prompt written notice without undue delay to Customer's Designated POC if it knows that a Security Incident has taken place. Such notice will include all available details required under Applicable Data Protection Law(s) for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
14.1. Right to Audit; Permitted Audits. In addition to any other audit rights described in the Agreement, Customer and its regulators shall have the right to an on-site audit of Qualio’s facilities to review Qualio's architecture, systems, policies and procedures relevant to the security and integrity of Customer Personal Data, or as otherwise required by a governmental regulator:
14.1.1. Following any notice from Qualio to Customer of an actual Security Incident involving Customer Personal Data;
14.1.2. Upon Customer's reasonable belief that Qualio is not in compliance with Applicable Data Protection Laws, this Addendum or its security policies and procedures under the Agreement;
14.1.3. As required by governmental regulators; and
14.1.4. For any reason or no reason at all, once annually.
14.2. Audit Terms. Any audits described in this Section shall be:
14.2.1. Conducted by Customer or its regulator, or through a third party independent contractor selected by one of these parties;
14.2.2. Conducted during reasonable times;
14.2.3. Customer shall reimburse Qualio for any costs and expenses incurred by Qualio as a result of the audit.
14.2.4. To the extent possible, conducted upon reasonable advance notice to Qualio; and
14.2.5. Of reasonable duration and shall not unreasonably interfere with Qualio's day-to-day operations.
14.3. Independent Auditor. In the event that Customer conducts an audit through a third party independent auditor or a third party accompanies Customer or participates in such audit, such third party shall be required to enter into a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in the Agreement to protect Qualio's and Qualio's customers' confidential and proprietary information. For the avoidance of doubt, regulators shall not be required to enter into a non-disclosure agreement
14.4. Audit Results. Upon Qualio's request, after conducting an audit, Customer shall notify Qualio of the manner in which Qualio does not comply with any of the applicable security, confidentiality or privacy obligations or Applicable Data Protection Laws herein. Upon such notice, Qualio shall make any necessary changes to ensure compliance with such obligations at its own expense and without unreasonable delay and shall notify Customer when such changes are complete. Notwithstanding anything to the contrary in the Agreement, Customer may conduct a follow-up audit within six (6) months of Qualio's notice of completion of any necessary changes. To the extent that a Qualio audit and/or Customer audit identifies any material security vulnerabilities, Qualio shall remediate those vulnerabilities within ninety (90) days of the completion of the applicable audit, unless any vulnerability by its nature cannot be remedied within such time, in which case the remediation must be completed within a mutually agreed upon time.
15.1. Data Storage. Qualio will abide by the following with respect to the storage of Customer Personal Data:
15.1.1 Qualio will not store or retain any Customer Personal Data except as necessary to perform the Services under the Agreement.
15.2. Data Deletion. Qualio will abide by the following with respect to the deletion of Customer Personal Data:
15.2.1. Within thirty (30) calendar days of the Agreement's expiration or termination, or sooner if requested by Customer, Qualio will securely destroy (per subsection (iii) below) all copies of Customer Personal Data (excluding automatically created archival copies, which will be promptly destroyed in the ordinary course of business).
15.2.2. Tapes, printed output, optical disk, and other physical media must be physically destroyed by a secure method, such as shredding performed by a bonded provider.
15.2.3. Upon Customer's request, Qualio will provide a "Certificate of Deletion" certifying that Qualio has deleted all Customer Personal Data. Qualio will provide the "Certificate of Deletion" within thirty (30) days of Customer's request.
Qualio and the Customer agree to designate a point of contact for urgent privacy and security issues (a "Designated POC"). The current Designated POC for both parties are:
For Qualio: Kevin Duggan, Qualio Data Protection Officer
Email: privacy@qualio.com
For Customer: To be provided by Customer to Qualio (email being sufficient)
The parties agree to notify the other party in writing (email being sufficient) in the event of a change of a party’s Designated POC.
| Subject Matter of Processing | The Processing will involve Processing for data and application integration services. The subject matter of Processing is the Services pursuant to the Agreement. |
| Duration of Processing | The Processing will continue until the expiration or termination of the Agreement. |
| Categories of Data Subjects |
Includes the following:
|
| Nature and Purpose of Processing | The purpose of Processing of Customer Personal Data by Qualio is the performance of the Services pursuant to the Agreement. |
| Types of Personal Information |
Includes the following:
|
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 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 Appendix 1 (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 Appendix 1 (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 Appendix 1.
(d) The Appendices and Annexes to these Clauses forms an integral part of these Clauses.
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.
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 – Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9 – Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
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.
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.
Description of 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 Appendix 1.
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 Appendix 1, 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 Appendix 2 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 Appendix 1. 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 Appendix 2. 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 Appendix 1.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter 'onward transfer') if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(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.
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 in at least the time frame as specified in the Addendum in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
( c) The data importer shall provide, at the data exporter's request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor's obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree 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.
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 Appendix 2 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.
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.
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) he 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.
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 Appendix 1, 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 Appendix 1, 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 Appendix 1, 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.
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;
(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.
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.
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.
Governing law
(a) These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
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 Ireland.
(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.
This ANNEX 1 forms a part of the Standard Contractual Clauses attached to the Addendum for the purposes set forth below.
1. Clause 13 (Supervision) – With respect to Clause 13, the following additional provisions shall apply:
Where Customer is established in the United Kingdom or falls within the territorial scope of application of the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws and Regulations”), the Information Commissioner's Office (“ICO”) shall act as competent supervisory authority.
Where Customer is established in Switzerland or falls within the territorial scope of application of the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws and Regulations”), the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.
2. Clause 17 (Governing Law) – With respect to Clause 17, the following additional provisions shall apply:
If the Agreement is not governed by an EU Member State law, the Standard Contractual Clauses will be governed by: (i) the laws of Switzerland for transfers governed by the Swiss Federal Act of 19 June 1992 on Data Protection (“FADP”); or (ii) the laws of England and Wales.
3. Clause 18 (Choice of Forum and Jurisdiction) – With respect to Clause 18, the following additional provisions shall apply:
If the Agreement does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this Agreement, the parties agree that: (i) the courts of Switzerland (for transfer governed by FADP); or (ii) the courts of England and Wales, shall have exclusive jurisdiction to resolve any dispute arising from the Standard Contractual Clauses.
4. Data Transfers from the United Kingdom under the Standard Contractual Clauses. For data transfers governed by UK Data Protection Laws and Regulations, the Mandatory Clauses of the Approved Addendum, being Addendum B 1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as revised under Section 18 of those Mandatory Clauses ("Approved Addendum") shall apply. For the purposes of Table 4 of Part One of the Approved Addendum, neither party may end the Approved Addendum when it changes.
5. Data Transfers from Switzerland under the Standard Contractual Clauses. All references in the Standard Contractual Clauses to “GDPR” shall be understood to be references to FADP insofar as such transfers are subject to FADP.
This Appendix 1 forms part of the Standard Contractual Clauses.
Data exporter (Controller)
The data exporter (Controller) is the Customer set forth in the Order Form.
Data importer (Processor)
The Data importer (Processor) is Everworks Ltd T/A Qualio, a global provider of a variety of technology software and services for business.
Nature and Purpose of the Processing
Qualio will process Customer Personal Data submitted, stored, sent or received by Customer, its Affiliates or Users via the Services for the purposes of providing the Services and related technical support to Customer in accordance with the Data Processing Addendum.
Data subjects
Personal data submitted, stored, sent or received via the Services may concern the following categories of data subjects: Users including Customer’s employees and contractors; the personnel of Customer’s customers, suppliers and subcontractors; and any other person who transmits data via the Services, including individuals collaborating and communicating with Users.
Categories of data
Personal data submitted, stored, sent or received by Customer, its Affiliates or Users via the Services may include the following categories or data: legal names, partial names and nicknames; titles; positions; employer; compensation, benefits and work performance information; work contact information (including work email addresses, work phone numbers and physical work addresses), personal contact information, and connection and localization data (including IP addresses).
Special categories of data (if appropriate)
No special categories of data shall be transferred by data exporter or data importer.
Frequency and Duration of Processing of the Transfers
Transfers will occur on a continuous basis during the Data Exporter’s use of the Services under the Agreement. The Processing will continue until the expiration or termination of the Agreement.
Retention of Personal Data Transferred
Personal Data will be retained as specified in the Data Storage and Deletion provisions of the Addendum.
Transfers to Subprocessors
Nature of the Processing – The Processing by Subprocessors shall be to enable the performance of the Services under the Agreement, including Processing at Subprocessor data centers and technical support for the Services as requested by the Data Exporter and to fulfill all other Data Importer obligations under the Agreement.
Frequency and Duration of Processing of the Transfers - Transfers will occur on a continuous basis during the Data Exporter’s use of the Services under the Agreement. The Processing will continue until the expiration or termination of the Agreement.
Competent Supervisory Authority
The Data Exporter’s competent supervisory authority will be determined in accordance with the GDPR.
This Appendix 2 forms part of the Standard Contractual Clauses.
Description of the technical and organizational security measures implemented by the data importer in accordance with the Clauses:
Information Security Program Practices Assertion
Qualio maintains and enforces industry-standard technical and organizational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and ensures a level of security appropriate to the risk of its processing of Personal Data processing consistent with its obligations under the Agreement and the GDPR. These measures shall include a comprehensive information security program that includes administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Personal Data that are appropriate to the type of information that Data Importer will process. Data Importer shall regularly monitor compliance with these safeguards.
Core technical and organizational security measures implemented by Data Importer as of the date of signature are described in Data Importer’s most current Security Policies, which will be provided to Data Exporter upon request.
Security Policies and Practices
To mitigate the risk to information processing resources, unauthorized disclosure or erasure of information and interruption of support for business processes which may result from unauthorized access, security controls implemented by the Data Importer are included in the following sections:
Incident Response
Qualio has comprehensive enterprise-wide policies and procedures for reporting and managing security incidents. Qualio’s policy requires the prompt reporting of all security incidents. Once an issue has been reported, Qualio’s process notifies and engages the appropriate employees through automatic escalation and documented procedures.
Qualio’s policy requires appropriate investigation and evaluation in order to ensure that all incidents are addressed timely and effectively, and in accordance with Qualio’s policy and legal requirements.