Effective from July 1, 2023
This SplitMetrics Inc. Data Processing Agreement that includes the Standard Contractual Clauses (“SCC” or “SCCs”) and the UK Addendum as may be applicable (hereinafter referred to collectively as the “DPA”), reflects the parties’ agreement with respect to the terms governing the processing of Personal Data under the respective Service Order and the respective Terms of Service (hereinafter referred to collectively as the “Agreement”). This DPA is effective on the effective date of the Agreement.
The Controller has selected the Processor to act as a service provider in accordance with Art. 28 of Regulation (EU) 2016/679 on the protection of natural persons regarding the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, “GDPR”).
NOW, THEREFORE, in consideration of the mutual agreements set forth in this document, the Parties agree as follows:
The terms “personal data”, “data processing”, “data controller” or “controller”, “data processor” or “processor”, “data subject” and “special categories of personal data” shall have the meaning given to them in the Applicable Data Protection Law.
“Applicable Data Protection Law” means all applicable laws, enactments, regulations, orders, standards, codes of practice and other similar instruments that relate to data protection, privacy, the use of information relating to individuals, the information rights of individuals and/or the processing of Personal Data including without limitation, as applicable, the UK Data Protection Legislation, the EU GDPR and any successor legislation and/ or any corresponding or equivalent laws or regulations, once in force and applicable in the relevant territory;
“EEA” means the European Economic Area;
“EU GDPR” means the General Data Protection Regulation (EU) 2016/679, as amended from time to time;
“Services” means the services provided by the Processor under the Agreement;
“UK GDPR” has the meaning given to it in the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019.
2.1. Processing
The Processor shall process personal data on behalf of and in accordance with the instructions of the Controller.
2.2. The Controller’s instructions
The Controller shall, in its use of the Services and provision of instructions, process personal data in accordance with the requirements of the Applicable Data Protection Law. For the avoidance of doubt, the Controller’s instructions for the processing of personal data shall comply with the Applicable Data Protection Law. The Controller shall have sole responsibility for the accuracy, quality, and legality of personal data and the means by which the Controller acquired personal data.
3.1. Data Subject’s requests
The Processor shall, to the extent legally permitted, promptly notify the Controller if the Processor receives any requests from a data subject to exercise the data subject rights in relation to their personal data. To the extent, the Controller, in its use of the Services, does not have the ability to address the data subject request, the Processor shall, upon the Controller’s request, provide commercially reasonable efforts to assist the Controller in responding to such data subject request, to the extent the Processor is legally permitted to do so and the response to such data subject request is required under the Applicable Data Protection Law. To the extent legally permitted, the Controller shall be responsible for any costs arising from the Processor’s provision of such assistance, including any fees associated with provision of additional functionality.
4.1. Objection Right for New Sub-Processors
The Controller may reasonably object to the Processor using a new sub-processor (e.g., if making personal data available to the sub-processor may violate the Applicable Data Protection Law or weaken the protections for such personal data) by notifying the Processor promptly in writing within five (5) business days after receipt of the Processor’s notice in accordance with the mechanism set out in the Сlause 9 of SCC. Such notice shall explain the reasonable grounds for the objection. In the event the Controller objects to a new sub-processor, as permitted in the preceding sentence, the Processor will use commercially reasonable efforts to make available to the Processor a change in the Agreement or recommend a commercially reasonable change to the Controller’s configuration or use of the Agreement to avoid processing of personal data by the objected new sub-processor without unreasonably burdening the Controller. If the Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) calendar days, either party may terminate without penalty the applicable Agreement by providing written notice to the other party.
4.2. Liability
The Processor shall be liable for the acts and omissions of its sub-processors to the same extent the Processor would be liable if performing the Agreement of each sub-processor directly under the terms of this DPA.
Notwithstanding anything to the contrary in the Agreement, in no event will the Processor’s aggregate liability arising out of or related to this DPA exceed three time the aggregate amounts paid or payable to the Processor pursuant to the Agreement in the twelve (12) months period preceding the event giving rise to the liability, or One Hundred and Fifty Thousand United States Dollard (US$150,000.00), whichever is higher.
5.1. Data Storage and Processing Facilities
The Controller agrees that the Processor may store and process personal data in the United States and any other country in which the Processor or any of its sub-processors maintain facilities.
6.1. Controller’s notice of audit
The Controller shall be entitled to monitor compliance with the provisions on data protection and this DPA to the extent necessary, and may perform the inspections itself or using third parties, at the Controller’s cost, in particular by obtaining information and inspecting the stored data and systems as well as other on-site checks. The Controller shall give ten (10) business days’ prior notices of audits and they shall be carried out during ordinary business hours.
For the personal data transfer outside of the EU/EEA
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b);
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7
Docking clause
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (2) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten (10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (3) The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
(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.
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (4);
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of the Republic of Ireland.
(b) The Parties agree that those shall be the courts of Ireland. in which the data exporter is established.
(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.
A. LIST OF PARTIES
Data exporter(s):
Name: as indicated in the relevant Service Order.
Address: as indicated in the relevant Service Order.
Contact person’s name, position and contact details: as indicated in the relevant Service Order.
Activities relevant to the data transferred under these Clauses: processing activities related to receipt of the Services as set forth in the relevant Service Order.
Role: (controller/processor): Controller
Name: as indicated in the relevant Service Order.
Title: as indicated in the relevant Service Order.
Signature and date: this party’s signature of the relevant Service Order shall be considered a signature to these SCC. The date is the date of signing of the relevant Service Order by this party.
Data importer
Name: SplitMetrics Inc.
Address: 108 W. 13th Street, Suite 100, Wilmington, DE 19801, USA
Contact person’s name, position and contact details:
Maxim Lisovsky, CTO, [email protected], [email protected]
Activities relevant to the data transferred under these Clauses:
Receipt of the data from the data exporter and processing of the received data for the purposes of service provision to the data exporter.
If the data exporter uses services which are provided at acquire.splitmetrics.com domain the services include provision of access to the data importer’s platform for automatization and optimization of advertising accounts (including campaigns, ad groups and keywords) for Apple Search Ads advertising service available at acquire.splitmetrics.com domain and its subdomains.
If the data exporter uses services which are provided at optimize.splitmetrics.com domain they include provision of access to the data importer’s platform that provides an opportunity to emulate App Store pages (App Store & Google Store) on Web, set up and run experiments (A/B tests) with the emulated pages, driving visitors from paid acquisition channels, and collecting user behavior data on SplitMetrics Optimize experiments’ dashboards.
Role: (controller/processor): Processor
Name: Maksim Kamiankou
Title: CEO
Signature and date: this party’s signature of the relevant Service Order shall be considered a signature to these SCC. The date is the date of signing of the relevant Service Order by this party.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
The personal data to be processed concern the following categories of data subjects:
Categories of personal data transferred
The Services available at acquire.splitmetrics.com domain collect and process the following categories of data:
a. first name, last name, email and internet protocol (IP);
b. technical data ‒ user agent, operating system version, browser version;
c. usage data ‒ information on usage of website (acquire.splitmetrics.com), daily activity and interactions with the features;
a. technical data ‒ events from MMPs: mobile apps version, operating system version, type of device;
b. IDFA (Controller may switch off transfer of IDFA to Processor if Controller’s tracker allows to do so).
The Services available at optimize.splitmetrics.com domain collect and process the following categories of data:
a. first name, last name, email and internet protocol (IP);
b. technical data ‒ user agent, operating system version, browser version;
c. usage data ‒ information on usage of website (optimize.splitmetrics.com), daily activity and interactions with the features;
a. technical data ‒ user agent, operating system version, browser version;
b. usage data – interactions with web page (scrolls, taps, time on web page);
c. region (approximate) – based on IP address;
d. emails (optional) – if Controller chose email collecting.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
Not applicable.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Continuous
Nature of the processing
Сollection of the personal data of the representatives of the Controller, obtaining of the Controller’s mobile apps users’/web-pages users’ personal data from the Controller, disclosure of the personal data by transmission to the sub-contractors, analysis, retention, anonymization and destruction of the personal data.
Purpose(s) of the data transfer and further processing
The data is transferred by the Controller and processed by the Processor for the purposes of provision of services by the Processor to the Controller. Personal data may be transferred and processed also for provision of the related technical support services and improvement of the Services.
The Controller instructs the Processor to process the data in countries in which the Processor or any of its sub-processors maintains facilities as indicated in the List of Sub-Processors.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The personal data will be retained during the term of the Service Agreement (“Agreement”), executed by and between the Processor and the Controller. Until the data is deleted the Processor will continue to ensure compliance with these Clauses. However, the Processor may retain copies of the personal data, as defined in the Agreement, in the following cases: (i) stored on backup disks (backup storage facilities) automatically produced in the ordinary course of business which are not accessible from employees’ workstations in the ordinary course of business, and which will be automatically deleted within thirty (30) days (ii) stored for the purposes of researches and industry studies (with deletion of any references to the Controller if such researches or studies are made public.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The Processor may engage sub-processors to provide parts of the Services and related technical support services. When the Processor transfers the Controller’s personal data it will ensure the sub-processors only access and use the Controller’s personal data to the extent necessary to provide the Services and related technical support services and not for any other purpose. List of the current sub-processors is available in the List of Sub-Processors. The duration of the processing by the Sub-Processors shall not exceed the duration of the processing by the Processor.
C. COMPETENT SUPERVISORY AUTHORITY
The Data Protection Commission of the Republic of Ireland.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The Processor maintains administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data provided by the Controller as described below. The Processor annually conducts independent penetration testing and makes the respective improvements of the system based on the results of the testing.
1. Data Centers
a. The Processor’s stores all production data in physically secure data centers.
b. Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks.
c. The data center electrical power systems are designed to be redundant and maintainable without impact to continuous operations, 24 hours a day, and 7 days a week.
2. Access Control
a. Data is prevented from being read, copied, altered or removed without authorization during electronic transfer or while being recorded onto data storage media.
b. The Processor monitors a variety of communication channels as well as internal indicators for security incidents, and the Processor’s security personnel will react to known incidents.
c. The Processor’s data centers maintain an on-site security operation responsible for all physical data center security functions 24 hours a day, 7 days a week.
d. The Processor has, and maintains, a security policy for its personnel, and requires criminal background checks for the personnel with access to production data. Access to the infrastructure as well as data is provided on “need to know” basis to minimize access to Controller’s data.
3. Personnel Security
a. The Processor’s personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. The Processor conducts reasonably appropriate background checks to the extent legally permissible and in accordance with applicable regulations.
b. Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, the Processor’s confidentiality and privacy policies. Personnel handling Controller’s data are required to complete additional requirements appropriate to their role (e.g., criminal background check and extended probation period).
4. Input Control
a. The Processor applies measures that can establish by whom was entered into, altered in, or removed from data processing systems.
b. During the processing, the Processor applies protocol evaluation systems.
c. For the performance of obligations, the Processor uses checksums and digital signatures.
5. Logical Access Control
a. Only authorized persons have the ability to access the Controller’s personal data.
b. For this purpose, the Processor implemented the following measures: authentication procedures, logging of authentication attempts and aborting the logon process after a specific number of unsuccessful attempts, regularly updated antivirus and spyware filters.
c. The Processor has the access list which includes persons who are authorized to access to the personal data. This list can include employees and contractors.
d. The Processor confirms that each employee has personal and individual login credentials when logging on to the system.
6. Data access control
a. The Processor confirms that authorized persons use personal data according to their access rights.
b. Personal data cannot be read, copied, changed or removed without authorization during processing, use and storage.
c. During processing the Processor uses SSH keys, authorization concept and logging of access and abuse attempts.
7. Separation rule
a. Processing is based on the separation rule.
b. The separation rule means that personal data stored, process separately from each other on the assumption of the nature and purpose of the personal data.
8. Data integrity
a. The Processor implemented measures which protect Personal Data from malfunctioning of the system. Personal data cannot be corrupted or other ways change.
b. The Processor introduces of new releases and patches with release.
c. The Processor provides functional test during installation and releases.
d. With respect to the data integrity the processor uses logging and transport processes with individual responsibility.
9. Transport control
a. When transferring data, the Processor provides measures which provide an appropriate level of personal data protection during such transferring.
b. When personal data transferring, it must be provided via encrypted data networks or tunnel connections (VPN).
c. Data transmission is in accordance with personal responsibility.
d. When personal data is transported, the Processor uses encryption methods (namely, HTTPS/TLS) that detect data changes during transport.
e. For data carriers the Processor gives a secure transport container.
f. The Processor develops comprehensive logging procedures.
10. Transmission control
a. For the purposes of verification and establishing to which bodies personal data have been transmitted or made available using data communication equipment the Processor uses logging and checksum.
b. When such transmission is carried out, it is carried out with individual responsibility.
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 specific measures of the assistance provided by the sub-processors to the Controller (data exporter) are regulated by the sub-processors’ internal policies and regulations and may differ in each specific case. However, the level of the assistance provided by the sub-processors to the Controller (data exporter) shall not be lower than the level of assistance provided by the sub-processor to the Processor (data importer).
LIST OF SUB-PROCESSORS
List of current sub-processors is available at: https://splitmetrics.com/legal/subprocessors/.
For the personal data transfer outside of the UK
This Addendum has been issued by the UK Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
| Start date | This Addendum is effective on the effective date of the Agreement. | |
| The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
| Parties’ details | Full legal name: as indicated in the relevant Service Order. Trading name (if different): as indicated in the relevant Service Order. Main address (if a company registered address): as indicated in the relevant Service Order. Official registration number (if any) (company number or similar identifier): as indicated in the relevant Service Order. | Full legal name: SplitMetrics Inc. Trading name (if different): SplitMetrics Main address (if a company registered address): 108 W. 13th Street, Suite 100, Wilmington, DE (Delaware), 19801 Official registration number (if any) (company number or similar identifier): 6041339 |
| Key Contact | Full Name (optional): as indicated in the relevant Service Order. Job Title: as indicated in the relevant Service Order. Contact details including email: as indicated in the relevant Service Order. | Full Name (optional): Maxim Lisovsky Job Title: CTO Contact details including email: [email protected], [email protected] |
| Signature (if required for the purposes of Section 2) | Each party’s signature of the relevant Service Order shall be considered a signature to the UK Addendum | Each party’s signature of the relevant Service Order shall be considered a signature to the UK Addendum |
Table 2: Selected SCCs, Modules and Selected Clauses
| Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information: Date: the effective date of the Agreement. | |
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
| Annex 1A: List of Parties: As indicated in the “Annex I” of the EU SCCs |
| Annex 1B: Description of Transfer: As indicated in the “Annex I” of the EU SCCs |
| Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: As indicated in the “Annex II” of the EU SCCs |
| Annex III: List of Sub-processors: As indicated in the “Annex III” of the EU SCCs |
Table 4: Ending this Addendum when the Approved Addendum Changes
| Ending this Addendum when the Approved Addendum changes | The Data Exporter may end this Addendum as set out in Section 19. | |
Part 2: Mandatory Clauses
Entering into this Addendum
1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
| Addendum | This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs. |
| Addendum EU SCCs | The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information. |
| Appendix Information | As set out in Table 3. |
| Appropriate Safeguards | The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR. |
| Approved Addendum | The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18. |
| Approved EU SCCs | The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021. |
| ICO | The Information Commissioner. |
| Restricted Transfer | A transfer which is covered by Chapter V of the UK GDPR. |
| UK | The United Kingdom of Great Britain and Northern Ireland. |
| UK Data Protection Laws | All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. |
| UK GDPR | As defined in section 3 of the Data Protection Act 2018. |
4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
Hierarchy
9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
Incorporation of and changes to the EU SCCs
12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
b. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
c. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
15. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
a. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
b. In Clause 2, delete the words:
“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
c. Clause 6 (Description of the transfer(s)) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
d. Clause 8.7(i) of Module 1 is replaced with:
“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
e. Clause 8.8(i) of Modules 2 and 3 is replaced with:
“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
f. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
g. References to Regulation (EU) 2018/1725 are removed;
h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
j. Clause 13(a) and Part C of Annex I are not used;
k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
l. In Clause 16(e), subsection (i) is replaced with:
“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
m. Clause 17 is replaced with:
“These Clauses are governed by the laws of England and Wales.”;
n. Clause 18 is replaced with:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to this Addendum
16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved Addendum which:
a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
b. reflects changes to UK Data Protection Laws;
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
a. its direct costs of performing its obligations under the Addendum; and/or
b. its risk under the Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.