THIS AGREEMENT is dated April 3, 2023
Lumivero (UK) Ltd (a limited company incorporated and registered in England and Wales under company number 6906225), with its registered office at Penderel House, 4th Floor, 283-288 High Holborn, London, WC1V 7HP, United Kingdom ("Lumivero UK")
Lumivero Pty Ltd (a company registered in Australia under company number 627 117 668) the registered office of which is Collins. Square Tower 4’ Level 18, 727 Collins Street, Docklands VIC 3008 Australia] (Lumivero AU)
Lumivero, LLC (a company registered in the United States of America in the State of Delaware) the registered office of which is at 1331 17th Street, Ste. 404, Denver, CO (Lumivero US)
Swiss Academic Software GmbH (a company registered in Switzerland) of lorhofstrasse 2, 8820 Wädenswil, Switzerland (Academic)
each a “party”; together “the parties”,
- DEFINITIONS AND INTERPRETATION
- In this agreement, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly: “Applicable Law” means all applicable laws, rules and/or regulations applicable to this agreement or the activities contemplated thereunder, including without limitation Data Protection Laws;
- “Appropriate Safeguards” means such legally enforceable mechanism(s) and any supplementary safeguards required for transfers of Personal Data as may be permitted under Data Protection Laws from time to time;
- “Data Subject Request” means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;
- “Complaint” means a complaint or request relating to either party’s obligations under Data Protection Laws relevant to this agreement, including any compensation claim from a Data Subject or any notice, investigation or other action from a Supervisory Authority;
- “Confidential Information” means all information, however recorded, communicated, including technical or other information, imparted in confidence or disclosed by a party to another party, or otherwise obtained by the recipient, that:
- is identified as being confidential at the time of disclosure or which a reasonable person in the position of the recipient would understand to be confidential due to the nature, type or presentation of the information; an
- relates to the disclosing party’s business, services and products, developments, trade secrets, know-how, processes, methodologies, personnel, suppliers and clients, together with all information derived from this;
- “Data Exporters” means each of Lumivero UK and Swiss Academic;
- “Data Importers” means each of Lumivero US, Lumivero AU;
- “DPIA” means a data protection impact assessment, in accordance with Data Protection Laws;
- “Data Protection Laws” means all laws relating to the protection of personal data and privacy in force from time to time in any jurisdiction as applicable and binding on any party in respect of this agreement, including (without limitation):
- the EU GDPR;
- the UK GDPR;
- the UK Data Protection Act 2018;
- the Privacy and Electronic Communications Directive (EU) 2002/58/EC;
- the Privacy and Electronic Communications (EC Directive) Regulations 2003; and
- any laws that implement, replace, extend, re-enact, consolidate or amend any of the foregoing;
- “GDPR” means the EU GDPR and/or UK GDPR (as applicable);
- “EU GDPR” means the EU General Data Protection Regulation 2016/679;
- “Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
- “Protected Data” means Personal Data collected by the Data Exporters, or otherwise obtained by the Data Exporters in connection with the provision of services to customers of the Data Exporters ;
- “Restricted Transfer” means:
- a transfer of Protected Data from Data Exporters to a Data Importer; or
- an onward transfer of Protected Data from a Data Importer,
- in each case, where such transfer would be prohibited by Data Protection Laws in the absence of Appropriate Safeguards, such as Standard Contractual Clauses (together with any other requirements of Data Protection Laws);
- “Services” means the services provided by Data Importers to Data Exporters from time to time as detailed further in schedule 1 (Data Processing Details), as updated from time to time;
- “Standard Contractual Clauses” means the Annex to the European Commission Implementing Decision on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council or any new standard contractual clauses replacing or amending these from time to time;
- “Sub-Processor” means another Data Processor engaged by a Data Importer for carrying out processing activities in respect of the Protected Data on behalf of Data Exporters, and authorised by Data Exporters in accordance with clause 7]
- “Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws;
- “UK GDPR” means the UK version of the GDPR as it forms part of the law of each applicable jurisdiction of the United Kingdom pursuant to the European Union (Withdrawal) Act 2018; and
- In this agreement “Data Controller” (or “controller”), “Data Processor” (or “processor”), “Data Subject”, “Personal Data” and “processing” all have the meanings given to those terms in Data Protection Laws (and related terms such as “process” have corresponding meanings).
- The parties agree that, for the Protected Data, both the Data Exporters and the Data Importers shall be Data Processors.
- COMPLIANCE WITH DATA PROTECTION LAWS AND OBLIGATIONS
- Each party shall comply with Data Protection Laws and with their respective obligations under this agreement in connection with the processing of Protected Data and the provision of the Services.
- Data Importers shall each procure that any Sub-Processor that they engage and has access to Protected Data shall comply with the relevant obligations under this agreement.
- Data Exporters shall obtain and maintain all relevant regulatory registrations and notifications as are required under Data Protection Laws.
- DETAILS OF PROCESSING AND INSTRUCTIONS
- The processing to be carried out by the Data Importers under this agreement shall comprise the processing set out in schedule 1 (Data Processing Details), as updated from time to time by the written agreement of the parties.
- Insofar as Data Importers process Protected Data on behalf of Data Exporters, Data Importers:
- unless required to do otherwise by Applicable Law, shall (and shall ensure each person acting under their authority shall) process the Protected Data only on and in accordance with Data Exporter’s documented instructions as set out in this agreement and schedule 1 (Data Processing Details), and as updated from time to time by the written agreement of the parties (“Processing Instructions”); and
- if Applicable Law requires a Data Importer to process Protected Data other than in accordance with the Processing Instructions, shall notify the Data Exporter of any such requirement before processing the Protected Data (unless that law prohibits such information on important grounds of public interest).
- TECHNICAL AND ORGANISATIONAL MEASURES
- Data Importers shall implement and maintain appropriate technical and organisational measures in relation to the processing of Protected Data as Data Processors as part of the Services or otherwise in connection with this agreement:
- such that the processing will meet the requirements of Data Protection Laws and ensure the protection of the rights of Data Subjects;
- so as to ensure a level of security in respect of Protected Data processed appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed; and
- without prejudice to clause 9, insofar as is possible and in accordance with Data Protection Laws, to assist Data Exporters in the fulfilment of their obligations to respond to Data Subject Requests relating to Protected Data.
- SECURITY OF PROCESSING
- Without prejudice to clause 5.1.2, Data Importers shall, in respect of the Protected Data that each processes under this agreement comply with the requirements regarding security of processing set out in Data Protection Laws (as applicable to Data Processors) and in this agreement.
- USING OTHER PROCESSORS
- Data Importers shall not engage another Data Processor for carrying out any processing activities in respect of the Protected Data without the Data Exporter’s prior written consent, which shall not be unreasonably withheld or delayed.
- If Data Exporters gives its consent for such other Data Processor to act as a Sub-Processor, a Data Importer shall (prior to any processing of Protected Data by the Sub-Processor) appoint the Sub-Processor under a binding written contract, with enforceable data protection obligations on the same terms as apply to a Data Importer under this agreement (“Processor Contract”) (modified as strictly necessary for the specific processing activities being carried out by the Sub-Processor), in particular, that the Sub-Processor:
- provides sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of Data Protection Laws; and
- must obtain Data Exporter’s prior written consent and comply with the conditions referred to in this clause  for engaging another Data Processor.
- Data Importers shall:
- promptly upon request by a Data Exporter provide the relevant details of any such Processor Contract to Data Exporter; and
- where that Sub-Processor fails to fulfil its data protection obligations in accordance with the Processor Contract, remain fully liable to the Data Exporter for the performance of that Sub-Processor’s obligations.
- PERSONNEL REQUIREMENTS
- Data Importers shall ensure that any employees, agents or contractors who may have access to the Protected Data (“Personnel”) have entered into a binding contractual obligation with a Data Importer to keep the Protected Data confidential (except where disclosure is required by Applicable Law, in which case a Data Importer shall, where practicable and not prohibited by such Applicable Law, notify Data Exporter of any such requirement before such disclosure).
- DATA SUBJECT RIGHTS
- Data Importers shall record and then refer all Data Subject Requests that each receives to the Data Exporter within seven days of receipt of the Data Subject Request.
- Data Importers shall not respond to any Data Subject Request without Data Exporter’s prior written approval.
- ASSISTANCE WITH DATA EXPORTER’S COMPLIANCE
- Without prejudice to clause 3.1, a Data Importer shall promptly on request provide reasonable assistance (taking into account the nature of processing and the information available) to a Data Exporter in ensuring compliance with Data Exporter’s obligations under Data Protection Laws with respect to:
- security of processing;
- any remedial action and notifications to be taken in response to any Personal Data Breach or Complaint, including (subject in each case to Data Exporter's prior written authorisation) regarding any notification of the Personal Data Breach to Supervisory Authorities and/or communication to affected Data Subjects; and/or
- DPIAs or prior consultation with a Supervisory Authority regarding high risk processing, by providing such information and cooperation as Data Exporter may reasonably require for the purpose of assisting Data Exporter in respect of the same.
- RESTRICTED TRANSFERS BY DATA PROCESSORS
- Data Importers shall not transfer, or allow the onward transfer of, any Protected Data to any country without Data Exporter’s prior written consent and unless such transfer complies with Data Protection Laws, including in respect of Restricted Transfers.
- If the Data Exporter consents to a Restricted Transfer by a Data Importer such transfer shall be:
- pursuant to a written contract including equivalent obligations on the Sub-Processor in respect of Protected Data (in particular relating to security and confidentiality) as apply to Data Importers under this agreement;
- is effected by way of Appropriate Safeguards and, where practicable, the form of these shall be subject to Data Exporter's prior written approval (which shall not be unreasonably withheld or delayed); and
- complies with clause 4 and any requirements specified in schedule 1 (Data Processing Details); and
- otherwise complies with Data Protection Laws.
- Data Importers shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of Data Exporters.
- COMPLIANCE, INFORMATION AND AUDIT
- Data Importers shall (and shall procure that each of their Sub-Processors) make available to Data Exporters on request in a timely manner the following (provided that the Data Importer shall immediately inform the Data Exporter if, in its/their reasonable opinion an instruction infringes Applicable Law):
- copies of the records under clause [12.1]; and
- such other information as the Data Exporter reasonably requires in order to demonstrate the compliance of Data Importer with its obligations under Data Protection Laws and this agreement.
- Data Importers shall allow for and contribute to audits, including inspections, conducted by Data Exporters or another auditor mandated by the Data Exporter for the purpose of demonstrating compliance by Data Importers with their obligations under Data Protection Laws and under this agreement, provided that Data Exporters shall give a Data Importer reasonable prior notice of such audit and/or inspection, and ensure that any auditor is subject to binding obligations of confidentiality.
- NOTIFICATION OF PERSONAL DATA BREACHES AND COMPLAINTS
- In respect of any Personal Data Breach involving a Data Importer (or a Sub-Processor), a Data Importer shall:
- notify the Data Exporter of the Personal Data Breach without undue delay; and
- provide the Data Exporter without undue delay with such details as Data Exporter reasonably requires regarding:
- the nature of the Personal Data Breach, including the categories and approximate numbers of Data Subjects and Personal Data records concerned;
- any investigations into such Personal Data Breach;
- the likely consequences of the Personal Data Breach; and
- any measures taken, or that a Data Importer recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects,
- provided that, (without prejudice to the above obligations) if a Data Importer cannot provide all these details within such timeframes, it shall before the end of this timeframe, provide the Data Exporter with reasons for the delay and when it expects to be able to provide the relevant details (which may be phased), and give Data Exporter regular updates on these matters.
- Each party shall promptly inform the other if it receives a Complaint and provide the other party with full details of such Complaint.
- DELETION OR RETURN OF PROTECTED DATA AND COPIES
- Data Importers shall without delay:
- at the Data Exporter’s written request, either securely delete or securely return all the Protected Data to Data Exporter in such form as Data Exporter reasonably requests once processing by the Data Importer of any Protected Data is no longer required for the purpose of the Data Importer’s performance of its relevant obligations under this agreement; and
- securely delete existing copies (unless storage of any data is required by Applicable Law and, if so, Data Importer shall inform Data Exporter of any such requirement).
- CHANGES TO THE APPLICABLE DATA PROTECTION LAW
- Data Exporters may:
- by at least 30 days' written notice to Data Importers from time to time make any variations to this agreement, or request replacement of Standard Contractual Clauses, as a result of any change in Applicable Law or decision of a Supervisory Authority to allow transfers of Personal Data to be made without breach of Data Protection Laws; and
- propose any other variations to this agreement which the Data Exporters reasonably consider to be necessary to address the requirements of Data Protection Laws, and the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Data Exporter's notice as soon as is reasonably practicable.
- RESTRICTED TRANSFERS UNDER THIS AGREEMENT
- Where a Data Exporter will undertake Restricted Transfers of Protected Data under this agreement to a Data Importer, the parties hereby agree to abide by the Standard Contractual Clauses, the current version of which are set out in Annex A, and any other applicable requirements of Data Protection Laws. For the purposes of the Standard Contractual Clauses:
- Lumivero UK is a data exporter from the UK in relation to Protected Data;
- Academic is a data exporter from Switzerland in relation to Protected Data; and
- Lumivero AU, and Lumivero US, to the extent they process Protected Data in a country outside the UK or Switzerland, are data importers.
- Clause 17.1 shall not apply to a Restricted Transfer unless it is necessary, together with other reasonably practicable compliance steps, in order to enable the relevant Restricted Transfer to take place without breach of the Data Protection Laws.
- Each party shall:
- not disclose to any person any Confidential Information except as permitted by clause 18.2;
- maintain the other parties’ Confidential Information in confidence; and
- use such Confidential Information only to perform its obligations or exercise, evaluate or enforce its rights under this agreement.
- Each party may disclose the other parties’ Confidential Information:
- to its officers, employees, agents, contractors, representatives or advisers who need to know such information only for the purposes of carrying out that party’s obligations or exercising, evaluating or enforcing its rights under this agreement, provided that such persons are subject to equivalent obligations of confidentiality and the disclosing party shall ensure such persons comply with those obligations; and
- as may be required by applicable law, court order or any governmental or regulatory authority.
- The obligations under this clause 18 shall continue after the termination or expiry of this agreement.
- Should any provision of this agreement be invalid or unenforceable, then the remainder of this agreement shall (to the extent possible in compliance with Applicable Law) remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
- These clauses may be signed in any number of counterparts and all such counterparts taken together are deemed to constitute one document.
Dated: December 14, 2021
On behalf of Lumivero (UK):
Name: Gareth Morrison
Position: Chief Executive Officer
On behalf of Lumivero AU:
Name: Gareth Morrison
Position: Chief Executive Officer
Address: 35 Corporate Drive, Burlington, MA 01803, United States of America
Other information necessary in order for the contract to be binding (if any):
On behalf of Lumivero US:
Name: Gareth Morrison
Position: Chief Executive Officer
On behalf of Academic:
Name: Gareth Morrison
Position: Chief Executive Officer
APPENDIX A (Standard Contractual Clauses - Processor-to-Processor)
For the purposes of Article 46 of the UK GDPR for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Lumivero (UK) Ltd (a limited company incorporated and registered in England and Wales under company number 6906225), with its registered office at New Penderel House, 4th Floor, 283-288 High Holborn, London, WC1V 7HP, United Kingdom (“Lumivero UK”)
Lumivero Pty Ltd (a company registered in Australia under company number 627 117 668), the registered office of which is BDO Collins. Square Tower 4’ Level 18, 727 Collins Street, Docklands VIC 3008 Australia] (“Lumivero AU”)
Lumivero, LLC (a company registered in the United States of America in the State of Delaware) the registered office of which is at 1331 17th Street, Ste. 404, Denver, CO (“Lumivero US”)
Swiss Academic Software GmbH (a company registered in Switzerland) of lorhofstrasse 2, 8820 Wädenswil, Switzerland (“Academic”)
each a “party”; together “the parties”,
- The parties are related companies.
- It is contemplated that:
- Lumivero UK and Academic will each act as processors and data exporters; and
- Lumivero AU, Lumivero US will each act as processors and data importers.
- It is contemplated that services provided by the Data Importers to the Data Exporters from time to time will involve the transfer of personal data to the Data Importers. The Data Importers are each located in a country not ensuring an adequate level of data protection.
THE PARTIES AGREE
Purpose and scope
- 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.
- The Parties:
- the natural or legal persons (hereinafter “entity”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
- the entity 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”).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- 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.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
- Clause 9(a), (c), (d) and (e);
- Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 18(a) and (b);
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer
The details of the transfer, and in particular the categories of personal data that are transferred and the purposes for which they are transferred, are specified in Annex I.B.
- 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.
- 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.
- 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
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.
- The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
- The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
- The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.
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 controller, as communicated to the data importer by the data exporter, or from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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.
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 rectify or erase 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 controller 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
- 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, they 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 subject. 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 or the controller. 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.
- The data importer shall grant access to the 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.
- 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, without undue delay, the data exporter and, where appropriate and feasible, the controller 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 data breach, including 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.
- 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 its controller so that the latter may in turn 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 set out 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 controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- 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;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
- 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
- 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
- The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
- 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 controller.
- The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
- The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
- Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
- 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.
- 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.
- data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.
- The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
8.10 Documentation and compliance
- The Parties shall be able to demonstrate compliance with these Clauses.
- The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.
Use of sub-processors
- The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the prior specific written authorisation of the controller. The data importer shall submit the request for specific authorisation at least 1 month prior to the engagement of the sub-processor, together with the information necessary to enable the controller to decide on the authorisation. It shall inform the data exporter of such engagement. The list of sub-processors already authorised by the controller can be found in Annex III. The Parties shall keep Annex III up to date.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.
- 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.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
- The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. 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
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- 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:
- 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;
- refer the dispute to the competent courts within the meaning of Clause 18.
- 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.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- 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.
- 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
Local laws and practices affecting compliance with the Clauses
- 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.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- 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;
- 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;
- 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.
- 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.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- 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). The data exporter shall forward the notification to the controller.
- 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, if appropriate in consultation with the controller. 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 controller or the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
- 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:
- 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
- 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.
The data exporter shall forward the notification to the controller.
- 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.
- 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.). The data exporter shall forward the information to the controller.
- 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.
- 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
- 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).
- 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. The data exporter shall make the assessment available to the controller.
- 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
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- 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).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- 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;
- the data importer is in substantial or persistent breach of these Clauses; or
- 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 and the controller 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.
- 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.
- 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.
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 Netherlands.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of the United Kingdom.
- The Parties agree that those shall be the courts of the United Kingdom.
- A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the United Kingdom or the EU Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Lumivero UK Limited
Swiss Academic Software GmbH
Lumivero Pty Ltd
The personal data transferred concern the following categories of data subjects:
Customer Group Member customers and clients, research participants, Customer Group Member advisers, consultants and other professional experts, Customer Group Member employees and staff, Customer Group Member and services providers, complainants and enquirers who contact Customer Group Members, and / or individuals captured by CCTV images, including staff, customers and clients, offenders and suspected offenders, members of the public and those inside, entering or in the immediate vicinity of the area under surveillance.
Categories of data
The processor may process any or all of the following types / categories of Personal Data, and any additional types of Customer Personal Data, as set out in the Agreement and as relevant in the context of the Services:
personal details, family details, lifestyle and social circumstances, financial details, employment and education details, goods or services, visual images, personal appearance and behaviour, geolocation data.
Special categories of data (if appropriate)
The processor may process any or all of the following types / categories of special categories of data as relevant in the context of the Services:
Sensitive personal data / other categories of personal data, including information relating to physical or mental health data, genetic data or biometric data, criminal offences and alleged offences and proceedings, racial or ethnic origin, religious or philosophical beliefs, trade union membership, sex life or sexual orientation.
The personal data transferred will be subject to the following basic processing activities:
- Subject matter and duration of the Processing of Customer Personal Data
The subject matter of the Processing of the Customer Personal Data is set out in the Agreement. Processing of the Customer Personal Data by the Processor shall be for the term of the Agreement, provided that Personal Data shall not be Processed for longer than is necessary for the purpose for which it was collected or is being Processed (except where a statutory exception applies).
- The nature and purpose of the Processing of Customer Personal Data
The Processing of Customer Personal Data is Lumivero's provision of the applicable services under the Agreement, which shall involve performance on behalf of the relevant Customer Group Member of the tasks and activities set out in the Agreement for the purpose of providing those Services.
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.
Our Data Protection Addendum is here which covers the above questions.
Only DevOps and Support teams have access to the data and both teams are trained on GDPR, HIPAA and Cyber security trainings.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Data is transferred according to customer requirements and customer will have full control to select what needs to be transferred.
Nature of the processing
The personal data transferred will be subject to the following basic processing activities:
Storage on servers located within the EEA (except where Restricted Transfers applies, in which case personal data may be stored on servers located in the data importer’s country), deletion, and other processing requested by the data controller
Purpose(s) of the data transfer and further processing
As Sonia is hosted using Microsoft Azure PAAS Services, The data is stored in Azure Storage services. Data is encrypted in Transit using SSL 3.0 (SHA256). Data is encrypted at rest using Azure Storage Services encryption (AES 256 bit)
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Data is retained in backups for 90 days to cover accidental deletes. Customers can log a support request to request for immediate deletion as needed.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As Sonia is hosted using Azure PAAS services , Microsoft is the only Sub processor
Competent Supervisory Authority
The Data Protection Office for Lumivero can be contacted at firstname.lastname@example.org
ANNEX 2 TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organisational measures implemented by the Enboarder Aus(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.
[Examples of possible measures:
- Measures of pseudonymisation and encryption of personal data
- Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
- Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
- Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
- Measures for user identification and authorisation
- Measures for the protection of data during transmission
- Measures for the protection of data during storage
- Measures for ensuring physical security of locations at which personal data are processed
- Measures for ensuring events logging
- Measures for ensuring system configuration, including default configuration
- Measures for internal IT and IT security governance and management
- Measures for certification/assurance of processes and products
- Measures for ensuring data minimisation
- Measures for ensuring data quality
- Measures for ensuring limited data retention
- Measures for ensuring accountability
- Measures for allowing data portability and ensuring erasure]
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,