Data Processing Addendum for AI Narrator, Inc. Services
Last Modified: October 4, 2021
This Data Processing Addendum (the "DPA") is made between you, the customer ("Customer" or "You") and AI Narrator, Inc. together with its affiliates, successors and permitted assigns "Company" or "AI Narrator") and relates to your use of our Services.
Customer and Company are each individually referred to herein as a "Party" and collectively as the "Parties".
Customer enters into this DPA on behalf of itself. Except as expressly stated otherwise herein, in the event of any conflict between the terms of this DPA, including any appendices referenced herein, and the Agreement, the terms of this DPA shall take precedence.
The DPA applies to your use of the Services to the extent that either You or Company are/is subject to the GDPR as defined below, which mandates that the relationships between a Controller and a Processor (Article 28 GDPR) be governed by a written agreement.
The relationship between the Customer and the Company does not constitute, and shall not be construed as that of, a joint controller relationship.
However, depending on the Processing operations implemented by the Parties and as described in Appendix 1 to this DPA, AI Narrator may be acting in its capacity as:
- A Processor of the Customer for the purpose of performing the Services in accordance with the Customer's instruction, for the sole purpose and duration of the Agreement;
- A Controller, determining independently the purposes and means of the Processing operations it implements with regard to its needs for performance and statistical evaluations of the Services.
This DPA defines the role, the capacity and the ensuing liability of each Party based on the information detailed in Appendix 1.
This DPA contains only rules applicable to the Processing of Personal Data within the framework of the Agreement, along with additional rules pertaining to the transfer of data outside of the EU/EEA, as may be applicable. In consideration of the obligations herein contained, the Parties have agreed that they shall process any and all Personal Data on the terms set out in this DPA.
Capitalized terms not defined in context or in the Agreement shall have the meanings assigned to them below:
- "Appropriate Safeguards" shall mean appropriate safeguards pursuant to Art. 46 GDPR, such as legally binding and enforceable instruments between public authorities or bodies, binding corporate rules or standard data protection clauses adopted by the EU Commission;
- "Controller" shall have the meaning set forth in Article 4(7) GDPR and means, within the context of the Agreement, the Customer and/or its affiliate, inasmuch as it determines the purposes and means of the processing of Personal Data;
- "Data Protection Laws" means (i) the GDPR, (ii) the e-Privacy Directive 2002/58/EC ("e-Privacy Directive"), and any further applicable legislation replacing the e-Privacy Directive and/or the GDPR; (iii) any data protection law, statute or regulation of a European Union (" EU") Member State, which may apply to one of the Parties pursuant to its data Processing activities or its establishment within the EU; (iv) any guidelines or opinion adopted by the European Data Protection Board (" EDPB") interpreting the application of GDPR and the e-Privacy Directive; (v) the decisions of the Supervisory Authority or the judicial or administrative courts of an EU Member State which are binding on one of the Parties by way of its data Processing activities or its establishment within the EU; as well as (vi) the decisions rulings adopted by the EUCJ or the ECHR regarding Personal Data and privacy protection and freedom of speech or freedom of information;
- "Data Subject" shall have the meaning set forth in Article 4(1) GDPR and means any natural person to whom Personal Data relates;
- "EU Data Protection Regulation" or "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC which shall include, for all intents and purposes, its counterpart in the United Kingdom (the "UK GDPR"), as may be amended from time to time over the performance of the Agreement;
- "Personal Data" shall have the meaning set forth in Article 4(1) GDPR and means any information relating to a Data Subject who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that Data Subject;
- "Processing" shall have the meaning set forth in Article 4(2) GDPR and means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not 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" shall have the meaning set forth in Article 4(8) GDPR and, within the context of the Agreement, means the Company which Processes Personal Data on behalf of the Controller;
- "Personal Data Breach" shall have the meaning set forth in Article 4(12) GDPR and means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
- "Sub-processor" means Processor engaged by Company for the provision of all or parts of the Services;
- "Supervisory Authority" shall have the meaning set forth in Article 4(21) GDPR and means an independent public authority which is established by an EU Member State pursuant to Article 51 GDPR.
2. Categories of Personal Data and Data Subjects
Customer authorizes and requests that Company processes Personal Data defined in Appendix 1 to this DPA.
3. Purpose and duration of Processing.
The purpose of Processing of Personal Data by the Company on behalf of the Customer is the performance of the Services pursuant to the Agreement.
4. Obligations of the Parties
Each Party undertakes to comply with Data Protection Laws, as applicable to their activities and Processing.
For the performance and management of the Agreement, the Parties, when each acting independently as a Controller, will process Personal Data relating to the other Party's representatives, as may be mentioned in this Agreement (e.g. signatories for the Parties). Each Party warrants that it will inform its own representative personnel on the Processing of his/her Personal Data by the other Party.
Each Party warrants and is liable for itself and its representatives and, as the case may be, for any third party Processor or authorized Sub-Processor to ensure the security, integrity and confidentiality of the Personal Data it processes in the context of the Agreement.
Each Party shall maintain the records of all of their Processing activities ("Records of Processing"), as mandated under Data Protection Laws. The Records of Processing shall contain the purpose of the Processing, categories of Personal Data being processed, sources of Personal Data, recipients of Personal Data, legal basis for the Processing activities, Personal Data retention periods resulting from the purpose of the Processing or from legal obligations, possible sharing of the Personal Data between the Parties, or the Personal Data remote access/availability of the other Party or by a third party.
The Parties agree that Appendix 2 to this DPA applies to any Processing of Personal Data which is carried out by the Company, acting as Processor on behalf of the Customer or acting as the Controller in regards to the Processing operation(s) as set forth in Appendix 1.
Other Processing operations which may be performed by Company as a Data Controller, as described in Appendix 1, without the involvement of Customer shall be Company's sole responsibility.
5. Liability and indemnification
Each Party represents and warrants that it will indemnify and hold the other Party harmless against any direct loss and damage to such Party resulting from a breach by such Party or its representatives of its contractual obligations under this DPA and/or any Data Protection Laws, subject to any limitation of liability provision in the Agreement.
Each Party, acting as Controller, shall be liable for the damage caused by processing which infringes Data Protection Laws.
The Company, acting as Processor, shall be liable for the damage caused by Processing only where it has not complied with obligations of Data Protection Laws specifically directed to Processors or where it has acted outside or contrary to the Customer instructions.
6. Effective date
The DPA shall come into force on the Effective Date shall be automatically terminated when the Agreement terminates or expires for any reason, notwithstanding the survival of the relevant provisions for as long as Personal Data related to a Party is retained by the other Party.
7. Governing law and venue
Governing law and venue are as set forth in the Agreement. For the avoidance of doubt, and without prejudice to any choice of law and jurisdiction governing Appendix 2,(i) this DPA shall be governed by and constructed in accordance with the laws of the State of New York of the United States of America (excluding its rules on conflict of law), and (ii) in the event that any claim related to this DPA cannot be subject to mandatory arbitration as a matter of law, the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and hereby irrevocably waive any claim that they are not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
This DPA prevails over any previous agreements with respect to this subject matter and, in particular, cancels and replaces any particular provisions in the Agreement which may relate to the Processing of Personal Data.
9. BREXIT CONSIDERATION
By executing the Agreement and this DPA, the Parties also agree to be bound by the UK Addendum to the SCC.
DETAILS OF THE PROCESSING
|Processing Operation||Legal Basis||Role of the Company||Role of the Customer||Personal Data Involved||Transfer outside of the EU/EEA|
|Performance of Services as set forth in the Agreement||Necessary for the performance of the contract entered into by Customer and Company||Data Processor||Data Controller||Customer Personal Data:Any of Customer's data in the Customer's data warehouse.||Yes
|Services Performance and statistical evaluation||Legitimate interest of AI Narrator to improve its services||Data Controller||N/A||Email, phone, location, any analytic data related to interactions with Company's Services||Yes
Standard Contractual Clauses on the basis of the EU Commission Implementing Decision 2021/914 of 4 June 2021 (Module 2 - Data Controller to Data Processor transfers)
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 (hereinafter, " GDPR") for the transfer of Personal Data to a third country.
(b) The Parties:
- (i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter, "Entity / ies") transferring the Personal Data, as listed in Annex I.A. (hereinafter, "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) GDPR and, with respect to Personal Data transfers from Data Controllers to Data Processors and/or Data Processors to Data Processors, standard contractual clauses pursuant to Article 28(7) GDPR, 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 GDPR.
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 - 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 GDPR.
Clause 4 - Interpretation
(a) Where these Clauses use terms that are defined in GDPR, 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 GDPR.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in GDPR.
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 - Reserved
Section II - OBLIGATIONS OF THE PARTIES
Clause 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.
(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 Agreement, including as set forth in these Clauses and the Agreement (" Instructions".)
(b) The Data Importer shall immediately inform the Data Exporter if it is unable to follow those Instructions, prior to implementing such Instructions. Data Importer shall not be liable for not carrying out any allegedly infringing Instruction whose status is duly notified to Data Exporter until the status of such Instruction has been resolved by the Parties.
(c) Upon specific and written Instructions of the Data Importer, the Data Exporter shall suspend any specific Processing, provided that the Processing shall only resume upon specific and written Instructions from Data Exporter to Data Importer.
1.2 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.
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 Article 13 and Article 14 GDPR.
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 Personal Data.
1.5 Duration of Processing and erasure or return of Personal Data
Processing by the Data Importer shall only take place for the duration specified in Annex I.B or for the duration of the Agreement or these Clauses, whichever the earlier. 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 Personal 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 laws. 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 Agreement 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).
Upon expiration or termination of these Clauses or the Agreement for any reason whatsoever:
- Data Importer shall inquire from Data Exporter about Data Exporter's intention with regard to the Personal Data at least fifteen (15) days prior to the effective termination of these Clauses or the Agreement. Further to this inquiry, where Data Exporter informs Data Importer of its intention to retrieve Personal Data, Processor shall retrieve all Personal Data and make it available to Data Exporter under a commonly used electronic format within fifteen (15) days from effective termination or expiration.
- Further to such provision, or if Data Exporter has not instructed Data Importer with respect to the retrieval of Personal Data prior to the effective expiration or termination of these Clauses or the Agreement, Data Importer shall delete all Personal Data on its systems (without prejudice to any backup archives) unless otherwise instructed by Data Exporter prior to the effective date of termination. Data Importer shall cooperate reasonably and in a timely manner with the efforts of Data Exporter, or any other party acting on Data Exporter's behalf, to provide for an orderly transition of the Processing to Data Exporter or another service provider. The costs attached to such request are included in the financial conditions set forth in the Agreement.
- Notwithstanding the foregoing, Data Importer may, upon suspension or termination of the Services under the Agreement, archive the Personal Data for a period of fourteen (14) days. In such instance, Data Exporter may retrieve Personal Data upon written request sent to the Data Importer.
- Notwithstanding anything herein to the contrary, Data Importer may retain one copy of the Personal Data only for as long as there exists a legal requirement to do but in compliance with applicable data protection laws and subject to the data protection provisions set forth in these Clauses.
1.6 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 Personal Data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that Personal Data (hereinafter " Personal Data Breach"). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of Processing and the risks involved in the Processing for the Data Subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of Processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the Personal Data to a specific Data Subject shall, where possible, remain under the exclusive control of the Data Exporter. In complying with its obligations under this paragraph, the Data Importer shall at least implement the technical and organisational measures specified in Annex II. The Data Importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The Data Importer shall grant access to the Personal Data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the Agreement. 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 and have received sufficient training on data protection compliance.
(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 Personal Data Breach, including measures to mitigate its adverse effects. The Data Importer shall also notify the Data Exporter without undue delay, and in any case within twenty-four (24) hours, after having become aware of the Personal Data Breach. Such notification shall contain the contact details for obtaining additional information, a description of the nature of the Personal Data 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 Personal Data Breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and insofar 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, at its sole costs and expenses, cooperate with and assist the Data Exporter to enable the Data Exporter to comply with its obligations under GDPR, 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.
(e) Data Importer shall promptly following discovery or notice of such Personal Data Breach, at its own costs and expenses, take (i) corrective action to mitigate any risks or damages involved with such Personal Data Breach and to protect Data Exporter Personal Data from any further use and/or access, (ii) investigate, evidence and document such Personal Data Breach, in particular its context, date of occurrence, type, extent and data involved, as well as any elements pertaining to the diagnosis of the origin or the occurrence of such Personal Data Breach, and the direct and indirect consequences of this Personal Data Breach, and provide Data Exporter with such evidence and documents, and (iii) any other actions that may be required by applicable Data Protection Laws as a result of such Personal Data Breach, subject to Data Exporter's prior written approval.
(f) In any event, without undue delay, the Data Importer shall notify the Data Exporter of all suspected or actual Personal Data Breach it encounters.
(g) Data Importer undertakes to maintain its SOC2 certification in good standing for the full duration of the Services.
1.7 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.
1.8 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 Personal 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 GDPR that covers the Onward Transfer;
- (ii) the third party otherwise ensures appropriate safeguards pursuant to Article 46or Article 47 GDPR 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.
1.9 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, at no additional costs, 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 as follows:
- (i) Where required by applicable law, or where mandated by a competent Supervisory Authority, Data Exporter may, upon ten (10) calendar days' prior written notice, at its own expense, perform or have a third party audit professional perform, an audit of Data Importer's compliance with applicable data protection laws and these Clauses.
- (ii) Before the commencement of any such additional audit inquiries, both Parties shall mutually agree upon the scope, timing and duration of the audit.
- (iii) Data Exporter shall promptly notify Data Importer with information regarding any non-compliance discovered during the course of such audit inquiries. Data Exporter agrees to provide Data Importer with a draft of the audit report for review.
- (iv) During such audit, Data Importer shall provide all reasonable cooperation and assistance to the auditors and/or Data Exporter. Where such audit inquiry is subsequent to a Personal Data Breach incumbent upon Data Importer, all audit costs shall be borne by Data Importer, without prejudice to any damages which may be further sought by Data Exporter.
- (v) Such inspection shall not interfere with the ordinary business activity carried out by Processor during its working hours and shall not adversely impact the normal course of Processor's business. Audit shall be limited to one per contractual year, unless mandated subsequent to a Personal Data Breach. In such case, all audit costs shall be borne by Processor. Nothing in the foregoing shall be construed as limiting the ability for a Supervisory Authority to conduct or requiring either Party to conduct any audit; in such case, each Party shall bear its own costs.
- (vi) Should the audit show a breach to these Clauses, this Appendix or the Data Protection Laws, especially but not limited to security or confidentiality requirements, Controller may require Processor to immediately remedy to this breach. Nothing herein shall prevent, or otherwise limit the ability of any Supervisory Authority to conduct, or mandate either party to conduct, a similar audit under the process, scope and timing set forth by such authority. Supplier agrees to cooperate in good faith with such Supervisory Authority.
(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 upon request.
(f) Provided that Data Exporter does not have direct access to the Personal Data and/or required information in order to address such undertaking, Data Importer shall further assist Data Exporter in ensuring compliance with the following obligations at no additional cost, taking into account the nature of the Processing and the information available to Data Importer:
- (i) the obligation to carry out an assessment of the impact of the envisaged Processing operations on the protection of Personal Data (a "Data Protection Impact Assessment") where a type of Processing is likely to result in a high risk to the rights and freedoms of natural persons;
- (ii) the obligation to consult the competent Supervisory Authority/ies prior to Processing where a Data Protection Impact Assessment indicates that the Processing would result in a high risk in the absence of measures taken by Data Exporter to mitigate the risk;
- (iii) the obligation to ensure that Personal Data is accurate and up to date, by informing Data Exporter without delay if Data Importer becomes aware that the Personal Data it is Processing is inaccurate or has become outdated;
- (iv) the obligations in Article 32 GDPR.
Clause 2 - Use of sub-Processors
(a) The Data Exporter generally authorizes Data Importer for the engagement of sub-Processor(s) from an agreed upon 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 thirty (30) daysin advance, thereby giving the Data Exporter sufficient time to be able to object to such changes prior to the engagement of the sub-Processor(s). The Data Importer shall provide the Data Exporter with the information necessary to enable the Data Exporter to exercise its right to object.
(b) Where the Data Importer engages a sub-Processor to carry out specific Processing activities (on behalf of the Data Exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the Data Importer under these Clauses, including in terms of third-party beneficiary rights for Data Subjects. The Parties agree that, by complying with this Clause, the Data Importer fulfils its obligations under Clause 8.8. The Data Importer shall ensure that the sub-Processor complies with the obligations to which the Data Importer is subject pursuant to these Clauses.
(c) The Data Importer shall provide, at the Data Exporter's request, a copy of such a sub-Processor agreement and any subsequent amendments to the Data Exporter. To the extent necessary to protect business secrets or other confidential information, including Personal Data, the Data Importer may redact the text of the agreement prior to sharing a copy.
(d) The Data Importer shall remain fully responsible to the Data Exporter for the performance of the sub-Processor's obligations under its contract with the Data Importer. The Data Importer shall notify the Data Exporter of any failure by the sub-Processor to fulfil its obligations under that contract.
(e) The Data Importer shall agree to a third-party beneficiary clause with the sub-Processor whereby - in the event the Data Importer has factually disappeared, ceased to exist in law or has become insolvent - the Data Exporter shall have the right to terminate the sub-Processor contract and to instruct the sub-Processor to erase or return the Personal Data.
Clause 3 - Data Subject rights
(a) The Data Importer shall promptly, without undue delay and in any event no later than twenty-four (24) hours from receipt, notify the Data Exporter of any request it has received from a Data Subject, any legally binding request for disclosure of and/or request for access to Controller Personal Data by a law enforcement authority unless otherwise prohibited under applicable law, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; or any legally binding request, order or inspection activity by a Supervisory Authority or other competent authority relating to Personal Data or privacy protection. It shall not respond to that request itself unless it has been authorised to do so by the Data Exporter or to confirm that such request has been duly forwarded to Data Exporter upon doing so. Data Importer shall not respond independently to any such questions and/or requests, unless otherwise expressly agreed in writing by Data Exporter in which case, Data Importer undertakes to comply with the processes and conditions set out by Data Exporter to this effect.
(b) The Data Importer shall assist, at no additional cost, the Data Exporter in fulfilling its obligations to respond to Data Subjects' requests for the exercise of their rights under GDPR. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the Processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the Data Importer shall comply with the instructions from the Data Exporter.
Clause 2 - 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.
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.
(b) 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.
(c) 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) GDPR.
(d) The Data Importer shall abide by a decision that is binding under the applicable EU or Member State law.
(e) The Data Importer agrees that the choice made by the Data Subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 3 - Liability
(a) Each Party shall be liable to the other Party/ies for any damages it, its personnel or its authorized sub-Processors, causes the other Party/ies by any breach of these Clauses and/or any data protection laws, including, but not limited to, loss of profits, reputation, image or business opportunity, and reasonable attorney's fees, subject to any limitation of liability agreed between the Parties.
(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 Data Processor acting on behalf of a Data Controller, to the liability of the controller under GDPR.
(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 2 - Supervision
(a) The Supervisory Authority with responsibility for ensuring compliance by the Data Exporter with GDPR as regards the Personal Data transfer, 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 II - LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 1 - 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) GDPR 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 Personal Data transferred;
- (ii) the laws and practices of the third country of destination– including those requiring the disclosure of Personal 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, at no additional cost, 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 and at no additional cost.
(e) The Data Importer agrees to notify, at no additional cost, the Data Exporter promptly if, after having agreed to these Clauses and for the duration of the Agreement, 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 Personal 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 Agreement insofar as it concerns the Processing of Personal Data under these Clauses. If the Agreement 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 Agreement is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 2 - Obligations of the Data Importer in case of access by public authorities
(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 Agreement, with as much relevant information as possible on the requests received (in particular, number of requests, type of Personal 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 Agreement 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.
2.2 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 III - FINAL PROVISIONS
Clause 1 - 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 Agreement is terminated. This is without prejudice to Clause 14(f).
(c) The Data Exporter shall be entitled to terminate the Agreement, 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 Agreement 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 Agreement pursuant to paragraph (c) shall at the choice of the Data Exporter immediately be returned to the Data Exporter or deleted in its entirety, in accordance with the Process detailed below. The same shall apply to any copies of the Personal Data. The Data Importer shall certify the deletion of the Personal Data to the Data Exporter. Until the Personal 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 Personal Data to the extent and for as long as required under that local law.
Upon expiration or termination for whatever reason of these Clauses or the Agreement:
- The Data Importer shall inquire from the Data Exporter about the Data Exporter's intention with regard to the Personal Data at least fifteen (15) days prior to the effective termination of these Clauses or the Agreement. Further to this inquiry, where the Data Exporter inform the Data Importer of its intention to retrieve Personal Data, the Data Importer shall retrieve all Personal Data and make them available to the Data Exporter under a commonly used electronic format within fifteen (15) days from effective termination or expiration.
- Further to such provision, or if the Data Exporter has not instructed the Data Importer for the retrieval of Personal Data prior to the effective expiration or termination of these Clauses or the Agreement, the Data Importer shall delete all Personal Data on its systems (without prejudice to any backup archives) unless otherwise instructed by the Data Exporter prior to the effective date of termination.
- Notwithstanding anything to the contrary, the Data Importer may retain one copy of the Personal Data only for as long as there exists a legal requirement to do but in compliance with applicable data protection laws and subject to the provision of these Clauses.
(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) GDPRthat covers the transfer of Personal Data to which these Clauses apply; or (ii) GDPR 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 GDPR.
Clause 2 - 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 France.
Clause 3 - 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 Paris, France. All disputes arising out of, or relating to, these Clauses shall be subject to the exclusive jurisdiction of the International Chamber of the Paris Commercial Court of First Instance (Tribunal de commerce de Paris), and all appeals from any decision of such court shall be subject to the exclusive jurisdiction of the International Chamber of the Paris Court of Appeals. The Parties hereby unconditionally agree on the protocols which set out the terms pursuant to which the cases will be examined and adjudicated before these chambers.
(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.
Such choices of governing law and forum and jurisdiction shall only be relevant as between the Parties for the sole purpose of Section C of this Agreement and this Schedule E.
Clause 4 - Effective Date
These Clauses shall come into force on the date of signature of these Clauses by the Parties or the first transfer of the Personal Data from the Data Exporter to the Data Importer, whichever is the earlier. These Clauses shall be automatically terminated when the Agreement terminates or expires for any reason, notwithstanding the survival of any relevant provisions for as long as Personal Data related to a Party is retained by the other Party.
[REMAINDER LEFT INTENTIONALLY BLANK]
A. LIST OF PARTIES
Data Exporter(s): [Identity and contact details of the Data Exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
- Name: ...
- Address: ...
- Contact person's name, position and contact details: The email address(es) designated by Customer in Customer’s account.
- Activities relevant to the data transferred under these Clauses: Data Exporter writes transformations in Data Importer's application. Data Importer uses transformation to process Data Exporter's data. Data is processed by Data Importer's infrastructure and returned back to Data Exporter's data warehouse.
- Signature and date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement
- Role (controller/Processor): Controller
Data Importer(s): [Identity and contact details of the Data Importer(s), including any contact person with responsibility for data protection]
Data Importer no. 1
- Name: AI Narrator Inc.
- Address: 245 8th Ave #1010, New York, NY 10011
- Contact person's name, position and contact details: Narrator Privacy Team - email@example.com
- Activities relevant to the data transferred under these Clauses: Data Exporter writes transformations in Data Importer's application. Data Importer uses transformations to process Data Exporter's data. Data is processed by Data Importer's infrastructure and returned back to Data Exporter's data warehouse
- Signature and date: By entering into the Agreement, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
- Role (controller/Processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of Data Subjects whose Personal Data is transferred
Data Exporter's clients, including companies, employees, persons.
Categories of Personal Data transferred
Any data the Data Exporter has in Data Exporter's data warehouse: personal information, identifiers, descriptors, classification characteristics, location data, sensory data, professional data, activities,
Sensitive Data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the Personal Data, restrictions for Onward Transfers or additional security measures.
The frequency of the transfer (e.g. whether the Personal Data is transferred on a one-off or continuous basis).
Nature of the Processing
Company (Data Importer) will import data from Customer's (Data Exporter) data warehouse, process data per Customer's instructions on Company's AWS infrastructure, and return data back to Customer's data warehouse. Company will only keep data out of Data Exporter's infrastructure for caching purposes to make the Services work more efficiently. That cache is controlled by Customer and can be turned off entirely.
The Services are as follows:
- Data Exporter writes transformations in Data Importer's application
- Data Importer uses transformations to process Data Exporter's data
- Data is processed by Data Importer's infrastructure and returned back to Data Exporter's data warehouse
Purpose(s) of the Personal Data transfer and further Processing
To provide services to Customer, a self-service analytics data platform.
The period for which the Personal Data will be retained, or, if that is not possible, the criteria used to determine that period
The cache layer is configurable by Customer and can be turned off entirely. Default is 3 hours.
For transfers to (sub-) Processors, also specify subject matter, nature and duration of the Processing
AI Narrator uses Amazon Web Services (AWS) as a sub-processor only to provide Services to the Customer outlined in Nature of the Processing. Narrator will restrict the onward sub-processor's access to Customer Content only to what is strictly necessary to provide the Services, and Narrator will prohibit the sub-processor from processing the personal data for any other purpose
C. COMPETENT SUPERVISORY AUTHORITY
Commission Nationale de l'Informatique et des Libertés
3 Place de Fontenoy
75334 PARIS CEDEX 07
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
EXPLANATORY NOTE: The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
For transfers to (sub-) Processors, also describe the specific technical and organisational measures to be taken by the (sub-) Processor to be able to provide assistance to the controller and, for transfers from a Processor to a sub-Processor, to the Data Exporter
The Company reserves the right to update Annex II when necessary, including for changes in laws or regulations which impact requirements.
AI Narrator is SOC 2 certified. Report on Management's Description of its Self Service Analytics System and the Suitability of Design of Controls Relevant to the Controls Placed in Operation and Test of Operation Effectiveness Relevant to the Circuity, Availability, and Confidentiality Categories report may be communicated on the Customer's request.
|Control Category||Control Type||Control Description|
|Physical||Third Party Data Center||Physical access control lists manage ingress and egress
Biometric readers at all main entry points
24x7x365 security officers with fixed locations at front and rear access points
24x7x365 CCTV recordings
Access control (mantraps)
All of the above handled by AWS – see Annex 3
Handling of Personal Information
Systems Development Life Cycle (SDLC)
Security Standards for Managed Applications
Data Retention and Disposal
User Compliance Training
IP Whitelisting & Blacklists
|Technical||Detective||Infrastructure Access Logs
Application Access Logs
Application Login Logs
|Technical||Access Control||Roles and Permissions
VPN – Operational / Admin
2 factor auth on application
Single Sign-On (SSO)
Token-based (OTP) multi-factor authentication
|Technical||Availability||Monitoring resource utilization, disk storage, network bandwidth|
Data Encryption in Transit
Data Encryption at Rest
Use of strong encryption protocols such as AES, KMS-managed encryption keys
|Technical||User Controls||User Authentication
LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-Processors:
Sub-Processor no. 1:
Amazon Web Services
- Address: 410 Terry Avenue North, Seattle, WA, USA
- Contact person's name, position and contact details: N/A
- Description of Processing (including a clear delimitation of responsibilities in case several sub-Processors are authorised):
Provides cloud infrastructure – data processing happens on Data Importer's services that are running on Data Importer's AWS cloud infrastructure.
The AWS GDPR DPA is incorporated into the AWS Service Terms. The DPA applies automatically to all customers globally who require it to comply with the GDPR. See https://d1.awsstatic.com/legal/aws-gdpr/AWS_GDPR_DPA.pdf as the subprocessor DPA
Data processing occurs in Data Importer's AWS infrastructure and then processed data is persisted back to data exporter's data warehouse. Processed data is only saved in Data Importer's AWS infrastructure for caching purposes for the purpose of providing the services.
See https://aws.amazon.com/compliance/soc-faqs/ for how they regularly test, assess and evaluate the effectiveness of their infrastructure.