Flinkwerk Data Protection Agreement

Effective date: February 2, 2022

Introduction

The parties agree that this Flinkwerk Data Protection Agreement (“DPA”) sets forth their obligations with respect to the processing and security of Personal Data and, where explicitly stated in the DPA Terms, Customer Data in connection with the Online Services provided by Flinkwerk, Inc. (“Flinkwerk”). The DPA (including its Appendix and Attachments) is between Flinkwerk and any customer receiving Online Services from Flinkwerk based on the Flinkwerk Customer Agreement (“Customer”), and is incorporated by reference into the Flinkwerk Customer Agreement.

In the event of any conflict or inconsistency between the DPA Terms and any other terms in the Flinkwerk Customer Agreement, the DPA Terms will prevail. The provisions of the DPA Terms supersede any conflicting provisions of the Flinkwerk Privacy Statement that otherwise may apply to processing of Personal Data. For clarity, the Standard Contractual Clauses prevail over any other term of the DPA Terms.

Applicable DPA Terms and Updates

Limits on Updates

When Customer renews or purchases a new subscription to an Online Service, the then-current DPA Terms will apply and will not change during the term of that new subscription for that Online Service.

New Features, Supplements, or Related Software

Notwithstanding the foregoing limits on updates, when Flinkwerk introduces features, supplements or related software that are new (i.e., that were not previously included with the subscription), Flinkwerk may provide terms or make updates to the DPA that apply to Customer’s use of those new features, supplements or related software. If those terms include any material adverse changes to the DPA Terms, Flinkwerk will provide Customer a choice to use the new features, supplements, or related software, without loss of existing functionality of a generally available Online Service. If Customer does not use the new features, supplements, or related software, the corresponding new terms will not apply.

Government Regulation and Requirements

Notwithstanding the foregoing limits on updates, Flinkwerk may modify or terminate an Online Service in any country or jurisdiction where there is any current or future government requirement or obligation that (1) subjects Flinkwerk to any regulation or requirement not generally applicable to businesses operating there, (2) presents a hardship for Flinkwerk to continue operating the Online Service without modification, and/or (3) causes Flinkwerk to believe the DPA Terms or the Online Service may conflict with any such requirement or obligation.

Electronic Notices

Flinkwerk may provide Customer with information and notices about Online Services electronically, including via email, or through a web site that Flinkwerk identifies. Notice is given as of the date it is made available by Flinkwerk.

Prior Versions

The DPA Terms provide terms for Online Services that are currently available. For earlier versions of the DPA Terms, Customer may contact its reseller or Flinkwerk Account Manager.

Definitions

Capitalized terms used but not defined in this DPA will have the meanings provided in the Flinkwerk Customer Agreement. The following defined terms are used in this DPA:

“CCPA” means the California Consumer Privacy Act as set forth in Cal. Civ. Code §1798.100 et seq. and its implementing regulations.

“Customer Data” means all data, including all text, sound, video, or image files, and software, that are provided to Flinkwerk by, or on behalf of, Customer through use of the Online Service.

“Data Protection Requirements” means the GDPR, Local EU/EEA Data Protection Laws, CCPA, and any applicable laws, regulations, and other legal requirements relating to (a) privacy and data security; and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Personal Data.

“Diagnostic Data” means data collected or obtained by Flinkwerk from software that is locally installed by Customer in connection with the Online Service. Diagnostic Data may also be referred to as telemetry. Diagnostic Data does not include Customer Data, Service Generated Data, or Professional Services Data.

“DPA Terms” means both the terms in this DPA and any Online Service-specific terms in the Flinkwerk Customer Agreement that specifically supplement or modify the privacy and security terms in this DPA for a specific Online Service (or feature of an Online Service). In the event of any conflict or inconsistency between the DPA and such Online Service-specific terms, the Online Service-specific terms shall prevail as to the applicable Online Service (or feature of that Online Service).

“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 (General Data Protection Regulation). In connection with the United Kingdom, “GDPR” means Regulation (EU) 2016/679 as transposed into national law of the United Kingdom by the UK European Union (Withdrawal) Act 2018 and amended by the UK Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (as may be amended from time to time).

“Local EU/EEA Data Protection Laws” means any subordinate legislation and regulation implementing the GDPR.

“GDPR Related Terms” means the terms in Attachment 3, under which Flinkwerk makes binding commitments regarding its processing of Personal Data as required by Article 28 of the GDPR.

“Flinkwerk Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with Flinkwerk.

“Flinkwerk Customer Agreement” means the service or other agreement(s) entered into by Customer with Flinkwerk for Online Services.

“Flinkwerk Privacy Statement” means the Flinkwerk Privacy Statement.

“Online Service” means any service or software provided by Flinkwerk to Customer under the Flinkwerk Customer Agreement agreed upon with Customer, including Previews, updates, patches, bug fixes, and technical support.

“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one 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 natural person.

“Preview” means Online Services provided for preview, evaluation, demonstration or trial purposes, or pre-release versions of the Online Services.

“Professional Services Data” means all data, including all text, sound, video, image files or software, that are provided to Flinkwerk, by or on behalf of a Customer (or that Customer authorizes Flinkwerk to obtain from an Online Service) or otherwise obtained or processed by or on behalf of Flinkwerk through an engagement with Flinkwerk to obtain Professional Services. Professional Services Data includes Support Data.

“Service Generated Data” means data generated or derived by Flinkwerk through the operation of an Online Service. Service Generated Data does not include Customer Data, Diagnostic Data, or Professional Services Data.

“Standard Contractual Clauses” means either of the following sets of Standard Contractual Clauses, as applicable in the individual case to the transfer of personal data according to the section of this DPA entitled “Data Transfers and Location” below:

• the Standard Contractual Clauses (MODULE TWO: Transfer controller to processor), dated 4 June 2021, for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as described in Article 46 of the GDPR and approved by European Commission Implementing Decision (EU) 2021/91 (“Standard Contractual Clauses (EU/EEA)”). The Standard Contractual Clauses (EU/EEA) are set forth in Attachment 1.
• the Standard Contractual Clauses (Processors), dated 5 February 2010, for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR, approved by European Commission Decision 2010/87/EU and recognized by the regulatory or supervisory authorities of the United Kingdom for use in connection with data transfers from the United Kingdom (“Standard Contractual Clauses (UK)”). The Standard Contractual Clauses (UK) are set forth in Attachment 2.

“Subprocessor” means other processors used by Flinkwerk to process Personal Data on behalf of Customer in connection with the Online Services, as described in Article 28 of the GDPR.

“Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Flinkwerk by or on behalf of Customer (or that Customer authorizes Flinkwerk to obtain from an Online Service) through an engagement with Flinkwerk to obtain technical support for Online Services covered under this agreement. Support Data is a subset of Professional Services Data.

Lower case terms used but not defined in this DPA, such as “personal data breach”, “processing”, “controller”, “processor”, “profiling”, “personal data”, and “data subject” will have the same meaning as set forth in Article 4 of the GDPR, irrespective of whether GDPR applies. The terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.

For clarity, and as detailed above, data defined as Customer Data, Diagnostic Data, Service Generated Data, and Professional Services Data may contain Personal Data. For illustrative purposes, please see the chart inserted below:

Above is a visual representation of the data types defined in the DPA. All Personal Data is processed as a part of one of the other data types (all of which also include non-personal data). Support Data is a sub-set of Professional Services Data. Except where explicitly stated otherwise, the DPA Terms exclusively apply to Personal Data.

General Terms

Compliance with Laws

Flinkwerk will comply with all laws and regulations applicable to its provision of the Online Services, including security breach notification law and Data Protection Requirements. However, Flinkwerk is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not generally applicable to information technology service providers. Flinkwerk does not determine whether Customer Data includes information subject to any specific law or regulation. All Security Incidents are subject to the Security Incident Notification terms below.

Customer must comply with all laws and regulations applicable to its use of Online Services, including laws related to biometric data, confidentiality of communications, and Data Protection Requirements. Customer is responsible for determining whether the Online Services are appropriate for storage and processing of information subject to any specific law or regulation and for using the Online Services in a manner consistent with Customer’s legal and regulatory obligations. Customer is responsible for responding to any request from a third party regarding Customer’s use of an Online Service, such as a request to take down content under the U.S. Digital Millennium Copyright Act or other applicable laws.

Data Protection

Terms This section of the DPA includes the following subsections:

• Scope
• Nature of Data Processing; Ownership
• Disclosure of Processed Data
• Processing of Personal Data; GDPR
• Data Security
• Security Incident Notification
• Data Transfers and Location
• Data Retention and Deletion
• Processor Confidentiality Commitment
• Notice and Controls on Use of Subprocessors
• Educational Institutions
• CJIS Customer Agreement, HIPAA Business Associate, Biometric Data
• California Consumer Privacy Act (CCPA)
• How to Contact Flinkwerk
• Appendix A – Security Measures

Scope

The DPA Terms apply to all Online Services.

Previews may employ lesser or different privacy and security measures than those typically present in the Online Services. Unless otherwise noted, Customer should not use Previews to process Personal Data or other data that is subject to legal or regulatory compliance requirements. The following terms in this DPA do not apply to Previews: Processing of Personal Data; GDPR, Data Security, and California Consumer Privacy Act.

Nature of Data Processing; Ownership

Except as otherwise stated in the DPA Terms, Flinkwerk will use and otherwise process Customer Data and Personal Data as described and subject to the limitations provided below (a) to provide Customer the Online Service in accordance with Customer’s documented instructions, and/or (b) for Flinkwerk’s legitimate business operations incident to delivery of the Online Services to Customer. As between the parties, Customer retains all right, title and interest in and to Customer Data. Flinkwerk acquires no rights in Customer Data other than the rights Customer grants to Flinkwerk in this section. This paragraph does not affect Flinkwerk’s rights in software or services Flinkwerk licenses to Customer.

Processing to Provide Customer the Online Services

For purposes of this DPA, “to provide” an Online Service consists of:

• Delivering functional capabilities as licensed, configured, and used by Customer and its users, including providing personalized user experiences;
• Troubleshooting (e.g., preventing, detecting, and repairing problems); and
• Ongoing improvement (e.g., installing the latest updates and making improvements to user productivity, reliability, efficacy, and security).

When providing Online Services, Flinkwerk will use or otherwise process Personal Data only on Customer’s behalf and in accordance with Customer’s documented instructions.

Processing for Flinkwerk’s Legitimate Business Operations

For purposes of this DPA, “Flinkwerk’s legitimate business operations” consist of the following, each as incident to delivery of the Online Services to Customer: (1) billing and account management; (2) compensation (e.g., calculating employee commissions and partner incentives); (3) internal reporting and business modeling (e.g., forecasting, revenue, capacity planning, product strategy); (4) combatting fraud, abuse, cybercrime, or cyber-attacks that may affect Flinkwerk or Online Services; (5) improving the core functionality of accessibility, privacy or energy-efficiency; (6) financial reporting and compliance with legal obligations (subject to the limitations on disclosure of Processed Data outlined below); (7) the creation or management of end user accounts and profiles by Flinkwerk for individual users of Customer (except where Customer creates, manages or otherwise controls such end user accounts or profiles itself); and (8) other purposes pertaining to Personal Data not provided by Customer for storage in Flinkwerk repositories or in connection with Professional Services.

When processing for Flinkwerk’s legitimate business operations, Flinkwerk will not use or otherwise process Personal Data for: (a) user profiling, (b) advertising or similar commercial purposes, (c) data selling or brokering, or (d) any other purpose, other than for the purposes set out in this section.

Disclosure of Processed Data

Flinkwerk will not disclose or provide access to any Processed Data except: (1) as Customer directs; (2) as described in this DPA; or (3) as required by law. For purposes of this section, “Processed Data” means: (a) Customer Data; (b) Personal Data and (c) any other data processed by Flinkwerk in connection with the Online Service that is Customer’s confidential information under the Flinkwerk Customer Agreement. All processing of Processed Data is subject to Flinkwerk’s obligation of confidentiality under the Flinkwerk Customer Agreement.

Flinkwerk will not disclose or provide access to any Processed Data to law enforcement unless required by law. If law enforcement contacts Flinkwerk with a demand for Processed Data, Flinkwerk will attempt to redirect the law enforcement agency to request that data directly from Customer. If compelled to disclose or provide access to any Processed Data to law enforcement, Flinkwerk will promptly notify Customer and provide a copy of the demand, unless legally prohibited from doing so.

Upon receipt of any other third-party request for Processed Data, Flinkwerk will promptly notify Customer unless prohibited by law. Flinkwerk will reject the request unless required by law to comply. If the request is valid, Flinkwerk will attempt to redirect the third party to request the data directly from Customer.

Flinkwerk will not provide any third party: (a) direct, indirect, blanket, or unfettered access to Processed Data; (b) platform encryption keys used to secure Processed Data or the ability to break such encryption; or (c) access to Processed Data if Flinkwerk is aware that the data is to be used for purposes other than those stated in the third party’s request.

In support of the above, Flinkwerk may provide Customer’s basic contact information to the third party.

Processing of Personal Data; GDPR

All Personal Data processed by Flinkwerk in connection with the Online Services is obtained as part of either Customer Data, Professional Services Data (including Support Data), Diagnostic Data, or Service Generated Data. Personal Data provided to Flinkwerk by, or on behalf of, Customer through use of the Online Service is also Customer Data. Pseudonymized identifiers may be included in Diagnostic Data or Service Generated Data and are also Personal Data. Any Personal Data pseudonymized, or de-identified but not anonymized, or Personal Data derived from Personal Data is also Personal Data.

To the extent Flinkwerk is a processor or subprocessor of Personal Data subject to the GDPR, the GDPR Related Terms in Attachment 3 govern that processing and the parties also agree to the following terms in this sub-section (“Processing of Personal Data; GDPR”):

Processor and Controller Roles and Responsibilities

Customer and Flinkwerk agree that Customer is the controller of Personal Data and Flinkwerk is the processor of such data, except (a) when Customer acts as a processor of Personal Data, in which case Flinkwerk is a subprocessor; or (b) as stated otherwise in the Flinkwerk Customer Agreement or this DPA. When Flinkwerk acts as the processor or subprocessor of Personal Data, it will process Personal Data only on Customer’s behalf and in accordance with documented instructions from Customer. Customer agrees that its Flinkwerk Customer Agreement (including the DPA Terms and any applicable updates), along with the product documentation and Customer’s use and configuration of features in the Online Services, are Customer’s complete documented instructions to Flinkwerk for the processing of Personal Data. Information on use and configuration of the Online Services can be found at https://docs.flinkwerk.com or a successor location. Any additional or alternate instructions must be agreed to according to the process for amending Customer’s Flinkwerk Customer Agreement. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Flinkwerk that Customer’s instructions, including appointment of Flinkwerk as a processor or subprocessor, have been authorized by the relevant controller.

To the extent Flinkwerk uses or otherwise processes Personal Data subject to the GDPR for Flinkwerk’s legitimate business operations incident to delivery of the Online Services to Customer, Flinkwerk will comply with the obligations of an independent data controller under GDPR for such use. Flinkwerk is accepting the added responsibilities of a data “controller” under the GDPR for processing in connection with its legitimate business operations to: (a) act consistent with regulatory requirements, to the extent required under the GDPR; and (b) provide increased transparency to Customers and confirm Flinkwerk’s accountability for such processing. Flinkwerk employs safeguards to protect Personal Data in processing, including those identified in this DPA and those contemplated in Article 6(4) of the GDPR. With respect to processing of Personal Data under this paragraph, Flinkwerk makes the commitments set forth in the Standard Contractual Clauses set forth in Attachment 1 or Attachment 2 (as applicable); for those purposes, (i) any Flinkwerk disclosure of Personal Data, as described in Annex III to Attachment 1 or Appendix 3 to Attachment 2 (as applicable), that has been transferred in connection with Flinkwerk’s legitimate business operations is deemed a “Relevant Disclosure” and (ii) the commitments in Annex III to Attachment 1 or Appendix 3 to Attachment 2 (as applicable) apply to such Personal Data.

Processing Details

The parties acknowledge and agree that:

• Subject Matter. The subject-matter of the processing is limited to Personal Data within the scope of the section of this DPA entitled “Nature of Data Processing; Ownership” above and the GDPR.
• Duration of the Processing. The duration of the processing shall be in accordance with Customer instructions and the terms of the DPA.
• Nature and Purpose of the Processing. The nature and purpose of the processing shall be to provide the Online Service pursuant to Customer’s Flinkwerk Customer Agreement and for Flinkwerk’s legitimate business operations incident to delivery of the Online Service to Customer (as further described in the section of this DPA entitled “Nature of Data Processing; Ownership” above).
• Categories of Data. The types of Personal Data processed by Flinkwerk when providing the Online Service include: (i) Personal Data that Customer elects to include in Customer Data or Professional Services Data (including, without limitation, Support Data); and (ii) those expressly identified in Article 4 of the GDPR that may be contained in Diagnostic Data or Service Generated Data. The types of Personal Data that Customer elects to include in Customer Data or Professional Services Data (including, without limitation, Support Data) may be any categories of Personal Data identified in records maintained by Customer acting as controller pursuant to Article 30 of the GDPR, including the categories of Personal Data set forth in Annex I to Attachment 1 or Appendix 1 to Attachment 2 (as applicable).
• Data Subjects. The categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and may include any other categories of data subjects as identified in records maintained by Customer acting as controller pursuant to Article 30 of the GDPR, including the categories of data subjects set forth in Annex I to Attachment 1 or Appendix 1 to Attachment 2 (as applicable).

Data Subject Rights; Assistance with Requests

Flinkwerk will make available to Customer, in a manner consistent with the functionality of the Online Service and Flinkwerk’s role as a processor of Personal Data of data subjects, the ability to fulfill data subject requests to exercise their rights under the GDPR. If Flinkwerk receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with an Online Service for which Flinkwerk is a data processor or subprocessor, Flinkwerk will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Online Service. Flinkwerk shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

Records of Processing Activities

To the extent the GDPR requires Flinkwerk to collect and maintain records of certain information relating to Customer, Customer will, where requested, supply such information to Flinkwerk and keep it accurate and up-to-date. Flinkwerk may make any such information available to the supervisory authority if required by the GDPR.

Data Security

Flinkwerk will implement and maintain appropriate technical and organizational measures and security safeguards against accidental or unlawful destruction, or loss, alteration, unauthorized disclosure of or access to, Customer Data and Personal Data processed by Flinkwerk on behalf and in accordance with the documented instructions of Customer in connection with the Online Services. Flinkwerk will regularly monitor compliance with these measures and safeguards and will continue to take appropriate steps throughout the term of the Flinkwerk Customer Agreement. Appendix A – Security Safeguards contains a description of the technical and organizational measures and security safeguards implemented by Flinkwerk.

Customer is solely responsible for making an independent determination as to whether the technical and organizational measures and security safeguards for an Online Service meet Customer’s requirements, including any of its security obligations under applicable Data Protection Requirements. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing of its Customer Data and Personal Data as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons) the technical and organizational measures and security safeguards implemented and maintained by Flinkwerk provide a level of security appropriate to the risk with respect to its Customer Data and Personal Data. Customer is responsible for implementing and maintaining privacy protections and security measures for components that Customer provides or controls.

Flinkwerk will provide security compliance reporting such as external SOC1, type 2 and SOC2, type2 audit reports upon Customer request. Customer agrees that any information and audit rights granted by the applicable Data Protection Requirements (including, where applicable, Article 28(3)(h) of the GDPR) will be satisfied by these compliance reports, and will otherwise only arise to the extent that Flinkwerk's provision of a compliance report does not provide sufficient information, or to the extent that Customer must respond to a regulatory or supervisory authority audit or investigation.

Should Customer be subject to a regulatory or supervisory authority audit or investigation or carry out an audit or investigation in response to a request by a regulatory or supervisory authority that requires participation from Flinkwerk, and Customers’ obligations cannot reasonably be satisfied (where allowable by Customer’s regulators) through audit reports, documentation, or compliance information that Flinkwerk makes generally available to its customers, then Flinkwerk will promptly respond to Customer’s additional instructions and requests for information, in accordance with the following terms and conditions:

• Flinkwerk will provide access to relevant knowledgeable personnel, documentation, and application software.
• Customer and Flinkwerk will mutually agree in a prior written agreement (email is acceptable) upon the scope, timing, duration, control and evidence requirements, provided that this requirement to agree will not permit Flinkwerk to unreasonably delay its cooperation.
• Customer must ensure its regulator’s use of an independent, accredited third-party audit firm, during regular business hours, with reasonable advance written notice to Flinkwerk, and subject to reasonable confidentiality procedures. Neither Customer, its regulators, nor its regulators’ delegates shall have access to any data from Flinkwerk’s other customers or to Flinkwerk systems or facilities not involved in the Online Services.
• Customer is responsible for all costs and fees related to Flinkwerk’s cooperation with the regulatory audit of Customer, including all reasonable costs and fees for any and all time Flinkwerk expends, in addition to the rates for services performed by Flinkwerk.
• If the report generated from Flinkwerk’s cooperation with the regulatory audit of Customer includes any findings pertaining to Flinkwerk, Customer will share such report, findings, and recommended actions with Flinkwerk where allowed by Customer’s regulators.

Security Incident Notification

If Flinkwerk becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data or Personal Data processed by Flinkwerk on behalf and in accordance with the documented instructions of Customer in connection with the Online Services (each a "Security Incident"), Flinkwerk will promptly and without undue delay (1) notify Customer of the Security Incident; (2) investigate the Security Incident and provide Customer with detailed information about the Security Incident; (3) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.

Notification(s) of Security Incidents will be delivered to one or more of Customer's administrators by any means Flinkwerk selects, including via email. It is Customer's sole responsibility to ensure it maintains accurate contact information with Flinkwerk and that Customer's administrators monitor for and respond to any notifications. Customer is solely responsible for complying with its obligations under incident notification laws applicable to Customer and fulfilling any third-party notification obligations related to any Security Incident.

Flinkwerk will make reasonable efforts to assist Customer in fulfilling Customer's obligation under GDPR Article 33 or other applicable law or regulations to notify the relevant regulatory or supervisory authority and individual data subjects about a Security Incident.

Flinkwerk’s notification of or response to a Security Incident under this section is not an acknowledgement by Flinkwerk of any fault or liability with respect to the Security Incident.

Customer must notify Flinkwerk promptly about any possible misuse of its accounts or authentication credentials or any Security Incident related to an Online Service.

Data Transfers and Location

Personal Data that Flinkwerk processes on behalf and in accordance with the documented instructions of Customer in connection with the Online Services may not be transferred to, or stored and processed in a geographic location except in accordance with the DPA Terms and the safeguards provided below in this section. Taking into account such safeguards, Customer appoints Flinkwerk to transfer Personal Data to the United States or any other country in which Flinkwerk or its Subprocessors operate and to store and process Personal Data to provide the Online Services, except as may be described elsewhere in these DPA Terms.

All transfers of Personal Data out of the European Union, European Economic Area, or Switzerland to provide the Online Services shall be governed by the Standard Contractual Clauses (EU/EEA) in Attachment 1. All transfers of Personal Data out of the United Kingdom to provide the Online Services shall be governed by the Standard Contractual Clauses (UK) in Attachment 2. For the purposes of the Standard Contractual Clauses (UK) in Attachment 2, references to the “European Union,” “EU,” “European Economic Area,” “EEA” or a “Member State” shall be interpreted to refer to the United Kingdom where reasonably necessary and appropriate to give full force and effect to the Standard Contractual Clauses (UK) with respect to transfers of Personal Data from the United Kingdom. This applies regardless of the fact that, effective January 31, 2020, the United Kingdom is no longer a Member State of the European Union or European Economic Area.

Flinkwerk will abide by the requirements of applicable European Union, European Economic Area, United Kingdom and Swiss data protection law, and other Data Protection Requirements, in each case regarding the transfer of Personal Data to recipients or jurisdictions outside such jurisdiction. All such transfers of Personal Data will, where applicable, be subject to appropriate safeguards as described in Article 46 of the GDPR and such transfers and safeguards will be documented according to Article 30(2) of the GDPR.

Subject to the safeguards described above, Flinkwerk may transfer, store and otherwise process Personal Data to or in jurisdictions and geographic locations worldwide as it, subject to its sole discretion, considers reasonably necessary in connection with the Online Services.

Data Retention and Deletion

Upon Customer's reasonable request, unless prohibited by law, Flinkwerk will return or destroy all Customer Data and Personal Data processed by Flinkwerk on behalf and in accordance with the documented instructions of Customer in connection with the Online Services at all locations where it is stored within 30 days of the request, provided that it is no longer needed for providing the Online Services or the purposes for which a data subject had authorized the processing of their Personal Data. Flinkwerk may retain Customer Data or Personal Data to the extent required by the applicable Data Protection Requirements or other applicable law, and only to the extent and for such period as required by the applicable Data Protection Requirements or other applicable law, provided that Flinkwerk will ensure that the Customer Data or Personal Data is processed only as necessary for the purpose specified in the applicable Data Protection Requirements or other applicable law and no other purpose, and the Customer Data or Personal Data remains protected by the Applicable Data Protection Requirements or other applicable law.

Processor Confidentiality Commitment

Flinkwerk will ensure that its personnel engaged in the processing of Customer Data and Personal Data on behalf of Customer in connection with the Online Services (i) will process such data only on instructions from Customer or as described in this DPA, and (ii) will be obligated to maintain the confidentiality and security of such data even after their engagement ends. Flinkwerk shall provide periodic and mandatory data privacy and security training and awareness to its employees with access to Customer Data and Personal Data in accordance with applicable Data Protection Requirements or other applicable law and industry standards.

Notice and Controls on Use of Subprocessors

Flinkwerk may hire Subprocessors to provide certain limited or ancillary services on its behalf. Customer consents to this engagement and to Flinkwerk Affiliates as Subprocessors. The above authorizations will constitute Customer’s prior written consent to the subcontracting by Flinkwerk of the processing of Personal Data if such consent is required under applicable law, the Standard Contractual Clauses or the GDPR Related Terms.

Flinkwerk is responsible for its Subprocessors’ compliance with Flinkwerk’s obligations in this DPA. Flinkwerk makes available information about Subprocessors on the Flinkwerk website (or a successor location). When engaging any Subprocessor, Flinkwerk will ensure via a written contract that the Subprocessor may access and use Customer Data or Personal Data only to deliver the services Flinkwerk has retained them to provide and is prohibited from using Customer Data or Personal Data for any other purpose. Flinkwerk will ensure that Subprocessors are bound by written agreements that require them to provide at least the level of data protection required of Flinkwerk by the DPA, including the limitations on disclosure of Personal Data. Flinkwerk agrees to oversee the Subprocessors to ensure that these contractual obligations are met.

From time to time, Flinkwerk may engage new Subprocessors. Flinkwerk will give Customer notice of any new Subprocessor in advance of providing that Subprocessor with access to Customer Data. If Flinkwerk engages a new Subprocessor for a new Online Service, Flinkwerk will give Customer notice prior to availability of that Online Service.

If Customer does not approve of a new Subprocessor, then Customer may terminate any subscription for the affected Online Service without penalty by providing, before the end of the relevant notice period, written notice of termination. Customer may also include an explanation of the grounds for non-approval together with the termination notice, in order to permit Flinkwerk to re-evaluate any such new Subprocessor based on the applicable concerns. If the affected Online Service is part of a suite (or similar single purchase of services), then any termination will apply to the entire suite. After termination, Flinkwerk will remove payment obligations for any subscriptions for the terminated Online Service from subsequent invoices to Customer or its reseller.

Educational Institutions

If Customer is an educational agency or institution subject to the regulations under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), or similar state student or educational privacy laws (collectively “Educational Privacy Laws”), Customer shall not provide Personal Data covered by such Educational Privacy Laws to Flinkwerk without obtaining Flinkwerk’s prior, written and specific consent and entering into a separate agreement with Flinkwerk governing the parties’ rights and obligations with respect to the processing of such Personal Data by Flinkwerk in connection with the Online Services.

Subject to the above, if Customer intends to provide to Flinkwerk Personal Data covered by FERPA, the parties agree and acknowledge that, for the purposes of this DPA, Flinkwerk is a “school official” with “legitimate educational interests” in the Personal Data, as those terms have been defined under FERPA and its implementing regulations. Customer understands that Flinkwerk may possess limited or no contact information for Customer’s students and students’ parents. Consequently, Customer will be responsible for obtaining any student or parental consent for any end user’s use of the Online Services that may be required by applicable law and to convey notification on behalf of Flinkwerk to students (or, with respect to a student under 18 years of age and not in attendance at a postsecondary institution, to the student’s parent) of any judicial order or lawfully-issued subpoena requiring the disclosure of Personal Data in Flinkwerk’s possession as may be required under applicable law.

CJIS Customer Agreement, HIPAA Business Associate, Biometric Data

Except with Flinkwerk’s prior, written and specific consent, Customer shall not provide to Flinkwerk any Personal Data

• relating to criminal convictions and offenses or Personal Data collected or otherwise processed by Customer subject to or in connection with FBI Criminal Justice Information Services or the related Security Policy.
• constituting protected health information governed by the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191) or by state health or medical privacy laws.
• collected as part of a clinical trial or other biomedical research study subject to, or conducted in accordance with, the Federal Policy for the Protection of Human Subjects (Common Rule).
• covered by state, federal or foreign biometric privacy laws or otherwise constituting biometric information including information on an individual’s physical, physiological, biological or behavioral characteristics or information derived from such information that is used or intended to be used, singly or in combination with each other or with other information, to establish individual identity.

California Consumer Privacy Act (CCPA) / California Privacy Rights Act (CPRA)

If and to the extent Flinkwerk is processing Personal Data on behalf and in accordance with the documented instructions of Customer within the scope of the CCPA, Flinkwerk makes the following additional commitments to Customer. Flinkwerk will process the Personal Data on behalf of Customer and will not

• sell the Personal Data as the term “selling” is defined in the CCPA. - share, rent, release, disclose, disseminate, make available, transfer or otherwise communicate orally, in writing or by electronic or other means, the Personal Data to a third party for cross-context behavioral advertising, whether or not for monetary or other valuable consideration, including transactions for cross-context behavioral advertising in which no money is exchanged.
• retain, use or disclose the Personal Data for any purpose other than for the business purposes specified in the DPA Terms and the Flinkwerk Customer Agreement, including retaining, using or disclosing the Personal Data for a commercial purpose other than the business purposes specified in the DPA Terms or the Flinkwerk Customer Agreement, or as otherwise permitted by the CCPA.
• retain, use or disclose the Personal Data outside of the direct business relationship with Customer.
• combine the Personal Data with personal information that it receives from or on behalf of a third party or collects from California residents, except that Flinkwerk may combine Personal Data to perform any business purpose as permitted by the CCPA or any regulations adopted or issued under the CCPA.

How to Contact Flinkwerk

If Customer believes that Flinkwerk is not adhering to its privacy or security commitments, Customer may contact customer support at info@flinkwerk.com. Flinkwerk’s mailing address is:

Flinkwerk, Inc.
584 Castro Street #3074
San Francisco, CA 94114
United States

Appendix A – Security Safeguards

Flinkwerk has implemented and will maintain for Customer Data and Personal Data processed by Flinkwerk on behalf and in accordance with the documented instructions of Customer in connection with Flinkwerk services the following technical and organizational measures and security safeguards, which in conjunction with the security commitments in this DPA (including the GDPR Related Terms), are Flinkwerk’s only responsibility with respect to the security of that data:

Domain	Practices
Organization of Information Security	Security Ownership. Flinkwerk has appointed one or more security officers responsible for coordinating and monitoring the security policies and procedures. Security Roles and Responsibilities. Flinkwerk personnel with access to Customer Data and Personal Data are subject to confidentiality obligations. Risk Management Program. Flinkwerk performs an annual risk assessment. Flinkwerk retains its security documents pursuant to its retention requirements after they are no longer in effect. Vendor Management. Flinkwerk has a vendor risk assessment process, vendor contract clauses and additional data protection agreements with vendors.
Asset Management	Asset Inventory. Flinkwerk maintains an inventory of all media on which Customer Data and Personal Data is stored. Access to the inventories of such media is restricted to Flinkwerk personnel authorized to have such access. Asset Handling - Flinkwerk classifies Customer Data and Personal Data to help identify it and to allow for access to it to be appropriately restricted. - Flinkwerk communicates employee responsibility and accountability for data protection up to and including cause for termination. Flinkwerk personnel must obtain Flinkwerk authorization prior to remotely accessing Customer Data and Personal Data or processing Customer Data and Personal Data outside Flinkwerk’s facilities.
Human Resources Security	Security Training. Flinkwerk requires all new hires to complete security and privacy awareness training as part of initial on-boarding. Participation in annual training is required for all employees to provide a baseline for security and privacy basics.
Physical and Environmental Security	Physical Access to Facilities. Flinkwerk limits access to facilities where information systems that process Customer Data and Personal Data are located to identified authorized individuals. Physical Access to Components. Flinkwerk maintains records of the incoming and outgoing media containing Customer Data, including the kind of media, the authorized sender/recipients, date and time, the number of media and the types of Customer Data and Personal Data they contain. Protection from Disruptions. Flinkwerk uses a variety of industry standard systems to protect against loss of data due to power supply failure or line interference. Component Disposal. Flinkwerk uses industry standard processes to delete Customer Data and Personal Data when it is no longer needed.
Communications and Operations Management	Operational Policy. Flinkwerk maintains security documents describing its security measures and the relevant procedures and responsibilities of its personnel who have access to Customer Data. Data Recovery Procedures - On an ongoing basis, but in no case less frequently than once a week (unless no Customer Data and Personal Data has been updated during that period), Flinkwerk maintains multiple copies of Customer Data and Personal Data from which Customer Data and Personal Data can be recovered. - Flinkwerk stores copies of Customer Data and Personal Data and data recovery procedures in a different place from where the primary computer equipment processing the Customer Data and Personal Data is located. - Flinkwerk has specific procedures in place governing access to copies of Customer Data. - Flinkwerk logs data restoration efforts, including the person responsible, the description of the restored data and where applicable, the person responsible and which data (if any) had to be input manually in the data recovery process. Malicious Software. Flinkwerk has threat detection controls to help identify and respond to anomalous or suspicious access to Customer Data, including malicious software originating from public networks. Data Beyond Boundaries - Flinkwerk encrypts, or enables Customer to encrypt, Customer Data and Personal Data that is transmitted over public networks. - Flinkwerk restricts access to Customer Data and Personal Data in media leaving its facilities. Event Logging. Flinkwerk logs, or enables Customer to log, access and use of information systems containing Customer Data, registering the access ID, time, authorization granted or denied, and relevant activity.
Access Control	Access Policy. Flinkwerk maintains a record of security privileges of individuals having access to Customer Data. Access Authorization - Flinkwerk maintains and updates a record of personnel authorized to access Flinkwerk systems that contain Customer Data. - Flinkwerk identifies those personnel who may grant, alter or cancel authorized access to data and resources. - Flinkwerk ensures that where more than one individual has access to systems containing Customer Data, the individuals have separate identifiers/log-ins where technically and architecturally feasible, and commercially reasonable. Least Privilege - Technical support personnel are only permitted to have access to Customer Data and Personal Data when needed. - Flinkwerk restricts access to Customer Data and Personal Data to only those individuals who require such access to perform their job function. Flinkwerk employees are only granted access to production systems based on their role within the organization. Integrity and Confidentiality - Flinkwerk instructs Flinkwerk personnel to disable administrative sessions when computers are left unattended. - Flinkwerk stores passwords such that they are encrypted or unintelligible while they are in force. Authentication - Flinkwerk uses industry standard practices to identify and authenticate users who attempt to access information systems. - Where authentication mechanisms are based solely on passwords, Flinkwerk requires the password to be at least eight characters long. - Flinkwerk ensures that de-activated or expired employee identifiers are not granted to other individuals. - Flinkwerk monitors, or enables Customer to monitor, repeated attempts to gain access to the information system using an invalid password. - Flinkwerk maintains industry standard procedures to deactivate passwords that have been corrupted or inadvertently disclosed. - Flinkwerk uses industry standard password protection practices, including practices designed to maintain the confidentiality and integrity of passwords when they are assigned and distributed, and during storage. Network Design. Flinkwerk has controls to ensure no systems storing Customer Data and Personal Data are part of the same logical network used for Flinkwerk business operations.
Information Security Incident Management	Incident Response Process - Flinkwerk maintains a record of security incidents with a description of the incidents, the time period, the consequences of the breach, the name of the reporter, and to whom the incident was reported, and details regarding the handling of the incident. - In the event that Flinkwerk Security confirms or reasonably suspects that a Flinkwerk.com customer is affected by a data breach, we will notify the customer without undue delay - Flinkwerk tracks, or enables Customer to track, disclosures of Customer Data, including what data has been disclosed, to whom, and at what time. Service Monitoring. Flinkwerk employs a wide range of continuous monitoring solutions for preventing, detecting, and mitigating attacks to the site.
Business Continuity Management	- Flinkwerk maintains emergency and contingency plans for the facilities in which Flinkwerk information systems that process Customer Data and Personal Data are located. - Flinkwerk’s redundant storage and its procedures for recovering data are designed to attempt to reconstruct Customer Data and Personal Data in its original or last-replicated state from before the time it was lost or destroyed.

Attachment 1 - The Standard Contractual Clauses (EU/EEA)

Controller to Processor

SECTION I

Clause 1

Purpose and scope

1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
2. The Parties:
   1. 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
   2. 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’).
3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
4. 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

1. 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.
2. 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

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

Clause 4

Interpretation

1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
3. 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

1. 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.
2. 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.
3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

1. 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.
2. 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

1. 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.
2. 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.
3. 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.
4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union ⁽¹⁾ (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

1. 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;

2. 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;

3. 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

4. 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

1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
2. 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.
3. 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.
4. 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.
5. 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

1. 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 90 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.
2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.⁽²⁾ The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
3. 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.
4. 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.
5. 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

1. 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.
2. 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.
3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

1. 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.
2. 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.
3. 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:
   1. 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;
   2. refer the dispute to the competent courts within the meaning of Clause 18.
4. 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.
5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
6. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

1. [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
2. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

1. 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.
2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
   1. 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;
   2. 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 ⁽³⁾;
   3. 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.
3. 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.
4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
5. 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).
6. 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

1. 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:
   1. 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
   2. 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.
2. 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.
3. 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.).
4. 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.
5. 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

1. 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).
2. 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.
3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

2. 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).

3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

   1. 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;
   2. the data importer is in substantial or persistent breach of these Clauses; or
   3. 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.

4. 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.

5. 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 Netherlands.

Clause 18

Choice of forum and jurisdiction

1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
2. The Parties agree that those shall be the courts of the Netherlands.
3. 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.
4. The Parties agree to submit themselves to the jurisdiction of such courts.

ANNEX I

to the Standard Contractual Clauses (EU/EEA)

A. LIST OF PARTIES

Data exporter(s): Customer is the data exporter Name: see Flinkwerk Customer Agreement Address: see Flinkwerk Customer Agreement Contact person’s name, position and contact details: see Flinkwerk Customer Agreement Activities relevant to the data transferred under these Clauses: The data exporter is a user of Online Services or Professional Services as defined in the DPA and Flinkwerk Customer Agreement. Signature and date: see Flinkwerk Customer Agreement (the DPA and the Standard Contractual Clauses (EU/EEA) are incorporated into the Flinkwerk Customer Agreement Role (controller/processor): controller (unless otherwise agreed in the Customer Agreement).

Data importer(s):

Flinkwerk, Inc.
584 Castro Street #3074
San Francisco, CA 94114
United States

Activities relevant to the data transferred under these Clauses: Flinkwerk, Inc. is a global producer of software and services Signature and date: see Flinkwerk Customer Agreement (the DPA and the Standard Contractual Clauses (EU/EEA) are incorporated into the Flinkwerk Customer Agreement) Role (controller/processor): processor or, depending on the agreements set forth in the Customer Agreement, subprocessor.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred:

Data subjects include the data exporter’s representatives and end-users including employees, contractors, collaborators, and customers of the data exporter. Data subjects may also include individuals attempting to communicate or transfer personal data to users of the services provided by data importer. Flinkwerk acknowledges that, depending on Customer’s use of the Online Service or Professional Services, Customer may elect to include personal data from any of the following types of data subjects in the personal data:

• Employees, contractors and temporary workers (current, former, prospective) of data exporter;
• Data exporter's collaborators/contact persons (natural persons) or employees, contractors or temporary workers of legal entity collaborators/contact persons (current, prospective, former);
• Users and other data subjects that are users of data exporter's services;
• Partners, stakeholders or individuals who actively collaborate, communicate or otherwise interact with employees of the data exporter and/or use communication tools such as apps and websites provided by the data exporter.

Categories of personal data transferred:

The personal data transferred that is included in e-mail, documents and other data in an electronic form in the context of the Online Services or Professional Services. Flinkwerk acknowledges that, depending on Customer’s use of the Online Service or Professional Services, Customer may elect to include personal data from any of the following categories in the personal data:

• Basic personal data (for example place of birth, street name and house number (address), postal code, city of residence, country of residence, mobile phone number, first name, last name, initials, email address, gender, date of birth);
• Authentication data (for example user name, password or PIN code, security question, audit trail);
• Contact information (for example addresses, email, phone numbers, social media identifiers; emergency contact details);
• Unique identification numbers and signatures (for example IP addresses, employee number, student number);
• Pseudonymous identifiers;
• Photos, video and audio;
• Internet activity (for example browsing history, search history, reading and viewing activities);
• Device identification (for example IMEI-number, SIM card number, MAC address);
• Profiling (for example based on observed criminal or anti-social behavior or pseudonymous profiles based on visited URLs, click streams, browsing logs, IP-addresses, domains, apps installed, or profiles based on marketing preferences);
• Special categories of data as voluntarily provided by data subjects (for example racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, data concerning a natural person’s sex life or sexual orientation, or data relating to criminal convictions or offences); or
• Any other personal data identified in Article 4 of the GDPR.

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: Flinkwerk does not request or otherwise ask for sensitive data and receives such data only if and when customers or data subjects decide to provide it.

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

Continuous as part of the Online Services or Professional Services.

Nature of the processing:

The personal data transferred will be subject to the following basic processing activities:

1. Duration and Object of Data Processing. The duration of data processing shall be for the term designated under the applicable Flinkwerk Customer Agreement between data exporter and the data importer. The objective of the data processing is the performance of Online Services and Professional Services.
2. Personal Data Access. For the term designated under the applicable Flinkwerk Customer Agreement, data importer will, at its election and as necessary under applicable law, either: (1) provide data exporter with the ability to correct, delete, or block personal data, or (2) make such corrections, deletions, or blockages on its behalf.
3. Data Exporter’s Instructions. For Online Services and Professional Services, data importer will only act upon data exporter’s instructions.

Purpose(s) of the data transfer and further processing:

The scope and purpose of processing personal data is described in the “Processing of Personal Data; GDPR” section of the DPA. The data importer operates a global network of data centers and management/support facilities, and processing may take place in any jurisdiction where data importer or its sub-processors operate such facilities in accordance with the “Security Practices and Policies” section of the DPA.

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

Upon expiration or termination of data exporter’s use of Online Services or Professional Services, it may extract personal data and data importer will delete personal data, each in accordance with the DPA Terms applicable to the agreement.

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

In accordance with the DPA, the data importer may hire other companies to provide limited services on data importer’s behalf, such as providing customer support. Any such subcontractors will be permitted to obtain personal data only to deliver the services the data importer has retained them to provide, and they are prohibited from using personal data for any other purpose. Unless a particular subcontractor is replaced ahead of time, the processing will be for the term designated under the applicable Flinkwerk Customer Agreement between data exporter and data importer.

C. COMPETENT SUPERVISORY AUTHORITY

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

The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679.

ANNEX II

to the Standard Contractual Clauses (EU/EEA)

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.

1. Data Security Certifications. Data importer holds the following data security certifications:
   • SOC 1, Type 2;
   • SOC 2, Type 2;
   • NIST, to the extent incorporated for FedRAMP Low-Impact / Tailored ATO.
2. Personnel. Data importer’s personnel will not process personal data without authorization. Personnel are obligated to maintain the confidentiality of any such personal data and this obligation continues even after their engagement ends.
3. Data Privacy Contact. The data privacy officer of the data importer can be reached at the following address: Flinkwerk, Inc. Attn: Privacy 88 Colin P. Kelly Jr. Street San Francisco, California 94107 USA
4. Technical and Organization Measures. The data importer has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect personal data, as defined in the Security Practices and Policies section of the DPA, against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction as follows: The technical and organizational measures, internal controls, and information security routines set forth in the Data Security section of the DPA are hereby incorporated into this Annex II to Attachment 1 by this reference and are binding on the data importer as if they were set forth in this Annex 2 to Attachment 1 in their entirety.

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:

Vendor management program - third-party risk program

The data importer has a vendor risk assessment process, vendor contract clauses and additional data protection agreements with vendors. Vendors undergo reassessment when a new business use case is requested. The data importer’s vendor risk program is structured so all of data importer’s vendors' risk assessments are refreshed two years from the last review date.

Vendors deemed high risk, such as data center providers or other vendors storing or processing data in scope for the data importer’s regulatory or contractual requirements, undergo reassessment annually.

ANNEX III

to the Standard Contractual Clauses (EU/EEA)

Additional Safeguards Addendum

By this Additional Safeguards Addendum to Standard Contractual Clauses (EU/EEA) (this “Addendum”), Flinkwerk, Inc. (“Flinkwerk”) provides additional safeguards to Customer and additional redress to the data subjects to whom Customer’s personal data relates.

This Addendum supplements and is made part of, but is not in variation or modification of, the Standard Contractual Clauses (EU/EEA).

1. Challenges to Orders. In addition to Clause 15.1 of the Standard Contractual Clauses (EU/EEA), in the event Flinkwerk receives an order from any third party for compelled disclosure of any personal data that has been transferred under the Standard Contractual Clauses (EU/EEA), Flinkwerk shall: 1. use every reasonable effort to redirect the third party to request data directly from Customer; 1. promptly notify Customer, unless prohibited under the law applicable to the requesting third party, and, if prohibited from notifying Customer, use all lawful efforts to obtain the right to waive the prohibition in order to communicate as much information to Customer as soon as possible; and 1. use all lawful efforts to challenge the order for disclosure on the basis of any legal deficiencies under the laws of the requesting party or any relevant conflicts with the law of the European Union or applicable Member State law.

   For purpose of this section, lawful efforts do not include actions that would result in civil or criminal penalty such as contempt of court under the laws of the relevant jurisdiction.

2. Indemnification of Data Subjects. Subject to Sections 3 and 4, Flinkwerk shall indemnify a data subject for any material or non-material damage to the data subject caused by Flinkwerk’s disclosure of personal data of the data subject that has been transferred under the Standard Contractual Clauses (EU/EEA) in response to an order from a non-EU/EEA government body or law enforcement agency (a “Relevant Disclosure”). Notwithstanding the foregoing, Flinkwerk shall have no obligation to indemnify the data subject under this Section 2 to the extent the data subject has already received compensation for the same damage, whether from Flinkwerk or otherwise.
3. Conditions of Indemnification. Indemnification under Section 2 is conditional upon the data subject establishing, to Flinkwerk’s reasonable satisfaction, that: 1. Flinkwerk engaged in a Relevant Disclosure; 1. the Relevant Disclosure was the basis of an official proceeding by the non-EU/EEA government body or law enforcement agency against the data subject; and 1. the Relevant Disclosure directly caused the data subject to suffer material or non-material damage.

   The data subject bears the burden of proof with respect to conditions a. though c. Notwithstanding the foregoing, Flinkwerk shall have no obligation to indemnify the data subject under Section 2 if Flinkwerk establishes that the Relevant Disclosure did not violate its obligations under Chapter V of the GDPR.

4. Scope of Damages. Indemnification under Section 2 is limited to material and non-material damages as provided in the GDPR and excludes consequential damages and all other damages not resulting from Flinkwerk’s infringement of the GDPR.
5. Exercise of Rights. Rights granted to data subjects under this Addendum may be enforced by the data subject against Flinkwerk irrespective of any restriction in Clauses 3 or 12 of the Standard Contractual Clauses (EU/EEA). The data subject may only bring a claim under this Addendum on an individual basis, and not part of a class, collective, group or representative action. Rights granted to data subjects under this Addendum are personal to the data subject and may not be assigned.
6. Notice of Change. In addition to Clause 14 of the Standard Contractual Clauses (EU/EEA), Flinkwerk agrees and warrants that it has no reason to believe that the legislation applicable to it or its sub-processors, including in any country to which personal data is transferred either by itself or through a sub-processor, prevents it from fulfilling the instructions received from the data exporter and its obligations under this Addendum or the Standard Contractual Clauses (EU/EEA) and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by this Addendum or the Standard Contractual Clauses (EU/EEA), it will promptly notify the change to Customer as soon as it is aware, in which case Customer is entitled to suspend the transfer of data and/or terminate the contract.
7. Termination. This Addendum shall automatically terminate if the European Commission, a competent Member State supervisory authority, or an EU or competent Member State court approves a different lawful transfer mechanism that would be applicable to the data transfers covered by the Standard Contractual Clauses (EU/EEA) (and if such mechanism applies only to some of the data transfers, this Addendum will terminate only with respect to those transfers) and that does not require the additional safeguards set forth in this Addendum.

Attachment 2 – The Standard Contractual Clauses (UK)

Execution of the Flinkwerk Customer Agreement by Customer includes execution of this Attachment 2, which is countersigned by Flinkwerk, Inc.

In countries where regulatory approval is required for use of the Standard Contractual Clauses, the Standard Contractual Clauses cannot be relied upon under European Commission 2010/87/EU (of February 2010) to legitimize export of data from the country, unless Customer has the required regulatory approval.

Beginning May 25, 2018 and thereafter, references to various Articles from the Directive 95/46/EC in the Standard Contractual Clauses below will be treated as references to the relevant and appropriate Articles in the GDPR.

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Customer (as data exporter) and Flinkwerk, Inc. (as data importer, whose signature appears below), each a “party,” together “the parties,” have agreed on the following Contractual Clauses (the “Clauses” or “Standard Contractual Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1: Definitions

1. 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
2. 'the data exporter' means the controller who transfers the personal data;
3. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
4. 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
5. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2: Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 below which forms an integral part of the Clauses.

Clause 3: Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4: Obligations of the data exporter

The data exporter agrees and warrants:

1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 below;
4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
5. that it will ensure compliance with the security measures;
6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5: Obligations of the data importer

The data importer agrees and warrants:

1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
4. that it will promptly notify the data exporter about:
   1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
   2. any accidental or unauthorised access, and
   3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
5. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
6. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
7. that the processing services by the subprocessor will be carried out in accordance with Clause 11; and
8. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6: Liability

1. The parties agree that any data subject who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7: Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
   1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
   2. to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8: Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9: Governing Law.

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10: Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11: Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12: Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses (UK)

Effective date: February 2, 2022

Data exporter: Customer is the data exporter. The data exporter is a user of Online Services or Professional Services as defined in the DPA and Flinkwerk Customer Agreement.

Data importer: The data importer is Flinkwerk, Inc., a global producer of software and services.

Data subjects: Data subjects include the data exporter’s representatives and end-users including employees, contractors, collaborators, and customers of the data exporter. Data subjects may also include individuals attempting to communicate or transfer personal data to users of the services provided by data importer. Flinkwerk acknowledges that, depending on Customer’s use of the Online Service or Professional Services, Customer may elect to include personal data from any of the following types of data subjects in the personal data:

• Employees, contractors and temporary workers (current, former, prospective) of data exporter;
• Data exporter's collaborators/contact persons (natural persons) or employees, contractors or temporary workers of legal entity collaborators/contact persons (current, prospective, former);
• Users and other data subjects that are users of data exporter's services;
• Partners, stakeholders or individuals who actively collaborate, communicate or otherwise interact with employees of the data exporter and/or use communication tools such as apps and websites provided by the data exporter.

Categories of data: The personal data transferred that is included in e-mail, documents and other data in an electronic form in the context of the Online Services or Professional Services. Flinkwerk acknowledges that, depending on Customer’s use of the Online Service or Professional Services, Customer may elect to include personal data from any of the following categories in the personal data:

• Basic personal data (for example place of birth, street name and house number (address), postal code, city of residence, country of residence, mobile phone number, first name, last name, initials, email address, gender, date of birth);
• Authentication data (for example user name, password or PIN code, security question, audit trail);
• Contact information (for example addresses, email, phone numbers, social media identifiers; emergency contact details);
• Unique identification numbers and signatures (for example IP addresses, employee number, student number);
• Pseudonymous identifiers;
• Photos, video and audio;
• Internet activity (for example browsing history, search history, reading and viewing activities);
• Device identification (for example IMEI-number, SIM card number, MAC address);
• Profiling (for example based on observed criminal or anti-social behavior or pseudonymous profiles based on visited URLs, click streams, browsing logs, IP-addresses, domains, apps installed, or profiles based on marketing preferences);
• Special categories of data as voluntarily provided by data subjects (for example racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, data concerning a natural person’s sex life or sexual orientation, or data relating to criminal convictions or offences); or
• Any other personal data identified in Article 4 of the GDPR.

Processing operations: The personal data transferred will be subject to the following basic processing activities:

1. Duration and Object of Data Processing. The duration of data processing shall be for the term designated under the applicable Flinkwerk Customer Agreement between data exporter and data importer. The objective of the data processing is the performance of Online Services and Professional Services.
2. Scope and Purpose of Data Processing. The scope and purpose of processing personal data is described in the “Processing of Personal Data; GDPR” section of the DPA. The data importer operates a global network of data centers and management/support facilities, and processing may take place in any jurisdiction where data importer or its sub-processors operate such facilities in accordance with the “Security Practices and Policies” section of the DPA.
3. Personal Data Access. For the term designated under the applicable Flinkwerk Customer Agreement data importer will at its election and as necessary under applicable law, either: (1) provide data exporter with the ability to correct, delete, or block personal data, or (2) make such corrections, deletions, or blockages on its behalf.
4. Data Exporter’s Instructions. For Online Services and Professional Services, data importer will only act upon data exporter’s instructions as conveyed by Flinkwerk.
5. Personal Data Deletion or Return. Upon expiration or termination of data exporter’s use of Online Services or Professional Services, it may extract personal data and data importer will delete personal data, each in accordance with the DPA Terms applicable to the agreement.

Subcontractors: In accordance with the DPA, the data importer may hire other companies to provide limited services on data importer’s behalf, such as providing customer support. Any such subcontractors will be permitted to obtain personal data only to deliver the services the data importer has retained them to provide, and they are prohibited from using personal data for any other purpose.

Appendix 2 to the Standard Contractual Clauses (UK)

Effective date: February 2, 2022

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

1. Personnel. Data importer’s personnel will not process personal data without authorization. Personnel are obligated to maintain the confidentiality of any such personal data and this obligation continues even after their engagement ends.
2. Data Privacy Contact. The data privacy officer of the data importer can be reached at the following address: Flinkwerk, Inc. Attn: Privacy 88 Colin P. Kelly Jr. Street San Francisco, California 94107 USA
3. Technical and Organization Measures. The data importer has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect personal data, as defined in the Security Practices and Policies section of the DPA, against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction as follows: The technical and organizational measures, internal controls, and information security routines set forth in the Security Practices and Policies section of the DPA are hereby incorporated into this Appendix 2 by this reference and are binding on the data importer as if they were set forth in this Appendix 2 in their entirety.

Appendix 3 to the Standard Contractual Clauses (UK)

Effective date: February 2, 2022

Additional Safeguards Addendum

By this Additional Safeguards Addendum to Standard Contractual Clauses (UK) (this “Addendum”), Flinkwerk, Inc. (“Flinkwerk”) provides additional safeguards to Customer and additional redress to the data subjects to whom Customer’s personal data relates.

This Addendum supplements and is made part of, but is not in variation or modification of, the Standard Contractual Clauses (UK).

1. Challenges to Orders. In addition to Clause 5(d)(i) of the Standard Contractual Clauses (UK), in the event Flinkwerk receives an order from any third party for compelled disclosure of any personal data that has been transferred under the Standard Contractual Clauses (UK), Flinkwerk shall: 1. use every reasonable effort to redirect the third party to request data directly from Customer; 1. promptly notify Customer, unless prohibited under the law applicable to the requesting third party, and, if prohibited from notifying Customer, use all lawful efforts to obtain the right to waive the prohibition in order to communicate as much information to Customer as soon as possible; and 1. use all lawful efforts to challenge the order for disclosure on the basis of any legal deficiencies under the laws of the requesting party or any relevant conflicts with the law of the European Union or applicable Member State law.

   For purpose of this section, lawful efforts do not include actions that would result in civil or criminal penalty such as contempt of court under the laws of the relevant jurisdiction.

2. Indemnification of Data Subjects. Subject to Sections 3 and 4, Flinkwerk shall indemnify a data subject for any material or non-material damage to the data subject caused by Flinkwerk’s disclosure of personal data of the data subject that has been transferred under the Standard Contractual Clauses (UK) in response to an order from a non-EU/EEA government body or law enforcement agency (a “Relevant Disclosure”). Notwithstanding the foregoing, Flinkwerk shall have no obligation to indemnify the data subject under this Section 2 to the extent the data subject has already received compensation for the same damage, whether from Flinkwerk or otherwise.
3. Conditions of Indemnification. Indemnification under Section 2 is conditional upon the data subject establishing, to Flinkwerk’s reasonable satisfaction, that: 1. Flinkwerk engaged in a Relevant Disclosure; 1. the Relevant Disclosure was the basis of an official proceeding by the non-EU/EEA government body or law enforcement agency against the data subject; and 1. the Relevant Disclosure directly caused the data subject to suffer material or non-material damage.

   The data subject bears the burden of proof with respect to conditions a. though c. Notwithstanding the foregoing, Flinkwerk shall have no obligation to indemnify the data subject under Section 2 if Flinkwerk establishes that the Relevant Disclosure did not violate its obligations under Chapter V of the GDPR.

4. Scope of Damages. Indemnification under Section 2 is limited to material and non-material damages as provided in the GDPR and excludes consequential damages and all other damages not resulting from Flinkwerk’s infringement of the GDPR.
5. Exercise of Rights. Rights granted to data subjects under this Addendum may be enforced by the data subject against Flinkwerk irrespective of any restriction in Clauses 3 or 6 of the Standard Contractual Clauses (UK). The data subject may only bring a claim under this Addendum on an individual basis, and not part of a class, collective, group or representative action. Rights granted to data subjects under this Addendum are personal to the data subject and may not be assigned.
6. Notice of Change. In addition to Clause 5(b) of the Standard Contractual Clauses (UK), Flinkwerk agrees and warrants that it has no reason to believe that the legislation applicable to it or its sub-processors, including in any country to which personal data is transferred either by itself or through a sub-processor, prevents it from fulfilling the instructions received from the data exporter and its obligations under this Addendum or the Standard Contractual Clauses (UK) and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by this Addendum or the Standard Contractual Clauses (UK), it will promptly notify the change to Customer as soon as it is aware, in which case Customer is entitled to suspend the transfer of data and/or terminate the contract.
7. Termination. This Addendum shall automatically terminate if the European Commission, a competent Member State supervisory authority, or an EU or competent Member State court approves a different lawful transfer mechanism that would be applicable to the data transfers covered by the Standard Contractual Clauses (UK) (and if such mechanism applies only to some of the data transfers, this Addendum will terminate only with respect to those transfers) and that does not require the additional safeguards set forth in this Addendum.

   Signing the Standard Contractual Clauses (UK), Appendix 1, Appendix 2 and

Attachment 3 – European Union General Data Protection Regulation Terms

Effective date: February 2, 2022

Flinkwerk makes the commitments in these GDPR Related Terms, to all customers. These commitments are binding upon Flinkwerk with regard to Customer regardless of (1) the version of the Flinkwerk Customer Agreement and DPA that is otherwise applicable to any given Online Services subscription or (2) any other agreement that references this attachment.

For purposes of these GDPR Related Terms, Customer and Flinkwerk agree that Customer is the controller of Personal Data and Flinkwerk is the processor of such data, except when Customer acts as a processor of Personal Data, in which case Flinkwerk is a subprocessor. These GDPR Related Terms apply to the processing of Personal Data, within the scope of the GDPR, by Flinkwerk on behalf of Customer. These GDPR Related Terms do not limit or reduce any data protection commitments Flinkwerk makes to Customer in the Flinkwerk Customer Agreement or other agreement between Flinkwerk and Customer. These GDPR Related Terms do not apply where Flinkwerk is a controller of Personal Data.

Relevant GDPR Obligations: Articles 28, 32, and 33

1. Flinkwerk shall not engage another processor without prior specific or general written authorisation of Customer. In the case of general written authorisation, Flinkwerk shall inform Customer of any intended changes concerning the addition or replacement of other processors, thereby giving Customer the opportunity to object to such changes. (Article 28(2))

2. Processing by Flinkwerk shall be governed by these GDPR Related Terms under European Union (hereafter “Union”) or Member State law and are binding on Flinkwerk with regard to Customer. The subject-matter and duration of the processing, the nature and purpose of the processing, the type of Personal Data, the categories of data subjects and the obligations and rights of the Customer are set forth in the Customer’s licensing agreement, including these GDPR Related Terms. In particular, Flinkwerk shall:

   1. process the Personal Data only on documented instructions from Customer, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by Union or Member State law to which Flinkwerk is subject; in such a case, Flinkwerk shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
   2. ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
   3. take all measures required pursuant to Article 32 of the GDPR;
   4. respect the conditions referred to in paragraphs 1 and 3 for engaging another processor;
   5. taking into account the nature of the processing, assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR;
   6. assist Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to Flinkwerk;
   7. at the choice of Customer, delete or return all the Personal Data to Customer after the end of the provision of services relating to processing, and delete existing copies unless Union or Member State law requires storage of the Personal Data;
   8. make available to Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer.

   Flinkwerk shall immediately inform Customer if, in its opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions. (Article 28(3))

3. Where Flinkwerk engages another processor for carrying out specific processing activities on behalf of Customer, the same data protection obligations as set out in these GDPR Related Terms shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. Where that other processor fails to fulfil its data protection obligations, Flinkwerk shall remain fully liable to the Customer for the performance of that other processor's obligations. (Article 28(4))

4. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Customer and Flinkwerk shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

   1. the pseudonymisation and encryption of Personal Data;
   2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
   3. the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
   4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. (Article 32(1))

5. In assessing the appropriate level of security, account shall be taken of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed (Article 32(2)).

6. Customer and Flinkwerk shall take steps to ensure that any natural person acting under the authority of Customer or Flinkwerk who has access to Personal Data does not process them except on instructions from Customer, unless he or she is required to do so by Union or Member State law (Article 32(4)).

7. Flinkwerk shall notify Customer without undue delay after becoming aware of a Personal Data breach (Article 33(2)). Such notification will include that information a processor must provide to a controller under Article 33(3) to the extent such information is reasonably available to Flinkwerk.

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

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

(3) As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.