Data Processing Addendum

This Data Processing Addendum (this “Addendum”) forms part of the Master Services Agreement, Terms of Service, End User Agreement, or other written or electronic agreement by and between Synack, Inc., a Delaware corporation (“Synack”) and the counterparty thereof (“Customer”) (the “Agreement”). This Addendum, together with all addendums, annexes, amendments, and attachments hereto, reflects the Parties’ agreement with regard to Synack’s Processing of Customer Personal Data in connection with providing Synack Services described in the Agreement. In the event of a conflict, the terms and conditions of this Addendum will prevail.

WHEREAS, Synack may process Customer Personal Data (as defined below) on behalf of Customer in connection with the Synack Services provided under the Agreement, and

WHEREAS, Synack and Customer seek to implement a data processing agreement that defines each party’s rights and obligations with respect to the processing of Customer Personal Data in compliance with the Privacy and Security Laws (as defined below).

NOW, THEREFORE, in consideration of the mutual covenants and agreements in this Addendum and the Agreement, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, Customer and Synack agree as follows:

1.              DEFINITIONS. The following terms, including any derivatives thereof, will have the meanings set forth below:

1.1            “Customer Personal Data” means any Personal Data that is Processed by Synack or its subcontractors on behalf of Customer as part of Customer’s use of the Synack Services.

1.2            “Data Subject” means an individual who is the subject of Personal Data.

1.3            “Personal Data” means information Synack processes for Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in Synack’s possession or control or that Synack is likely to have access to, or (b) the relevant Privacy and Security Laws otherwise define as protected personal information.

1.4            “Privacy and Security Laws” means all applicable federal, state, and foreign laws and regulations relating to the processing, protection, or privacy of the Personal Data under the Agreement, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. This includes, but is not limited to, (a) the California Online Privacy Protection Act (CalOPPA) (Cal. Bus. & Prof. Code § 22577), the California Data Protection Act (Cal. Civ. Code § 1798.80-84), and California Breach Notification Laws (Cal. Civ. Code §§ 1798.29, 1798.82), (b) the UK Data Protection Act 2018 (“DPA”), the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (collectively, the “UK GDPR”), (c) the EU General Data Protection Regulation 2016/679 (the “EU GDPR”) and the Privacy and Electronic Communications Directive 2002/58/EC, and (d) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any of the above or which otherwise relates to data protection, privacy or the use of Personal Data, in each case only to the extent applicable to the activities or obligations under or pursuant to the Agreement and as amended, consolidated, re-enacted or replaced from time to time.

1.5            “Process” means any activity that involves the use of Personal Data or that the relevant Privacy and Security Laws may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Data to third parties.

1.6            “Security Incident” means any actual accidental or unlawful destruction, loss, alteration, unauthorized disclosure, unauthorized access to, or malicious infection of Customer Personal Data transferred, stored, or otherwise Processed by Synack or any of its subcontractors or third parties that Process Customer Personal Data on Synack’s behalf.

1.7            “Synack Personnel” will have the same meaning provided under the Agreement.

1.8            “Synack Services” will have the same meaning provided under the Agreement.

2.              PROCESSING OF CUSTOMER PERSONAL DATA.

2.1            Synack will only Process Customer Personal Data for purposes of providing the Synack Services, which constitutes a business purpose under CCPA, and only in accordance with Customer’s instructions unless otherwise required under the Privacy and Security Laws, in which case Synack will use commercially reasonable efforts to inform Customer of that legal requirement prior to Processing such Customer Personal Data (unless that law prohibits such information on important grounds of public interest). The subject matter and duration of the Processing, the nature and purpose of the Processing, the type of Customer Personal Data and categories of the data subjects is described in more detail in Annex 1. Synack is prohibited from retaining, using, or disclosing Customer Personal Data except for the purpose of providing the Synack Services or as otherwise instructed by Customer.

2.2            Synack will reasonably assist Customer with meeting Customer’s compliance obligations under the Privacy and Security Laws, taking into account the nature of the Synack’s Processing and the information available to Synack. Subject to subsection 2.4 below, if Synack receives a request or demand from a Data Subject or third party for information regarding Customer Personal Data, Synack will promptly provide a copy of that request to Customer. Synack will cooperate with Customer to enable it to respond to the request, including providing Customer with any information or erasure of information to satisfy the request within a commercially reasonable period and in compliance with the Privacy and Security Laws.

2.3            Upon instruction from Customer and upon termination of the Agreement (or Customer’s request, if earlier in time), Synack will either return all Customer Personal Data in a commercially acceptable format to Customer or securely destroy all Customer Personal Data, unless retention is required by law. At Customer’s request, Synack will provide a signed certification that Customer Personal Data has been destroyed. If required to retain Customer Personal Data by law, Synack will securely store the data and continue to safeguard such data in accordance with this Addendum.

2.4            Synack will not sell or disclose Customer Personal Data to any third parties except as permitted by this Addendum or the Agreement, unless required by law, in which case Synack will (to the extent permitted by law) notify Customer in writing and liaise with Customer before complying with such disclosure request.

2.5            Subject to the terms herein, Synack will limit access to Customer Personal Data only to Synack Personnel, subcontractors, and other third parties who require access as part of the Synack Services.

2.6            Synack will ensure that its employees who access Customer Personal Data: (a) are informed of the Personal Data’s confidential nature and use restrictions; (b) have undertaken training on the Privacy and Security Laws relating to handling Personal Data and how it applies to their particular duties; and (c) are aware both of Synack’s duties and of their personal duties and obligations under the Privacy and Security Laws.

2.7            Synack agrees to treat all Customer Personal Data as strictly confidential and will ensure that all Synack Personnel, subcontractors, or other third parties with access to Customer Personal Data are bound by confidentiality obligations.

3.              SUBPROCESSORS.

3.1            Customer agrees that Synack may engage Sub-processors to process Customer Personal Data on Customer’s behalf. The Sub-processors currently engaged by Synack and authorized by Customer are listed in Annex III of the Appendix of the SCCs attached hereto and will be updated from time to time according to the process described in more detail in such Annex.

3.2            Synack shall: (a) enter into a written agreement with each Sub-processor containing data protection obligations are substantially similar to the data protection obligations contained in this Addendum; and (b) remain responsible for such Sub-processor’s compliance with the obligations of this Addendum and for any acts or omissions of such Sub-processor that cause Synack to breach any of its obligations under this Addendum.

4.              AUDIT.

4.1            Synack shall make available to Customer upon Customer’s written request information necessary to demonstrate compliance with this Addendum.

4.2            Synack shall permit, when Customer has reasonable cause to believe Synack is in non-compliance with its obligations under this Addendum, Customer or a mutually agreed-upon third party (the “Auditor”) to perform an audit in relation to Synack’s Processing of Customer Personal Data in compliance with this Addendum. Synack acknowledges that the Auditor may enter its premises for the purposes of conducting this audit, provided that Customer gives it reasonable prior notice of its intention to audit, conducts its audit during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Synack’s operations. Customer will not exercise its audit rights more than once in any twelve (12) calendar month period and shall bear all costs associated with the audits.

5.              SECURITY MEASURES.

5.1            Synack shall adhere to the technical and organizational measures in the Information Security Addendum to the Agreement (Information Security Standards) as the minimum standards during the term of the Agreement. Synack is free to replace the measures described in the Information Security Addendum by others as long as the minimum standards are still met or exceeded. In exceptional cases, individual measures may be waived by the parties to an Agreement as long as (a) the level of data protection concretely required for the specific data Processing is not compromised, (b) it is necessary for the implementation of the specific data Processing and (c) Customer has agreed to such a deviation in advance in writing.

5.2            In the event Synack discovers or becomes aware of a Security Incident relating to Customer Personal Data, Synack will: (a) notify Customer without undue delay, but in any case, no later than forty-eight (48) hours of becoming aware of the Security Incident; (b) investigate the Security Incident; (c) keep Customer apprised of Synack’s investigation; and (d) provide reasonable assistance in relation to any required notifications to regulators or Data Subjects.

6.              DATA TRANSFERS.

6.1            Synack shall not transfer or authorize the transfer of Customer Personal Data from a country within the European Economic Area, Switzerland or the UK to a country outside the European Economic Area, Switzerland or the UK except: (a) to a third country recognized by the European Commission or the relevant competent authorities of Switzerland or the UK, as applicable, as providing an adequate level of protection for personal data in accordance with the Privacy and Security Laws, (b) in compliance with Section 6.2 of this Addendum, or (c) otherwise in accordance with the Privacy and Security Laws.

6.2            Synack and Customer each agree that, for Customer Personal Data transferred from Customer to Synack, whether directly or via an onward transfer: (a) where such Customer Personal Data Processing is subject to the EU GDPR, the Standard Contractual Clauses (“SCC”), attached to this Addendum as Attachment 1 will apply, (b) where such Customer Personal Data Processing is subject to the UK GDPR, the UK International Data Transfer Addendum to the SCCs, attached as Addendum A to Attachment 1 shall apply, and (c) where such Customer Personal Data Processing is subject to the data protection laws of Switzerland, the Swiss Addendum to the SCCs, attached as Addendum B to Attachment 1 shall apply.

7.              WARRANTY AND REMEDIES.

7.1            Synack will at all times comply with the Privacy and Security Laws. Synack represents and warrants that nothing in the Privacy and Security Laws prevents it from performing the Synack Services or its obligations as described in this Addendum or the Agreement.

7.2            Customer will at all times comply with the Privacy and Security Laws, including obtaining all required consents and giving all required notices to enable Synack to Process the Customer Personal Data in accordance with the Agreement and this Addendum. Customer represents and warrants that nothing in the Privacy and Security Laws prevents Synack from performing the Synack Services or Synack’s obligations as described in this Addendum or the Agreement, including fulfilling the Customer instructions regarding Customer Personal Data.

7.3            Synack represents and warrants that the information Synack provided to Customer in assessing its security measures, including the Information Security Addendum to the Agreement, and any additional assessment questionnaires, is complete and accurate.

7.4            Customer agrees to indemnify and hold harmless Synack on demand from and against all Claims (as defined in the Agreement) arising out of or in connection with Customer’s breach of subsection 7.2 above. Indemnification procedures shall be as set forth in the Agreement.

7.5            Notwithstanding anything to the contrary in this Addendum or in the Agreement, the liability of either Party for any breach of this Addendum shall be subject to the limitations of liability provisions set forth in the Agreement.

8.              MISCELLANEOUS.

8.1            This Addendum will be effective from the last date set forth below and shall remain in effect throughout the term of the Agreement. In the event of the expiration or termination of the Agreement or this Addendum, Synack’s obligations described in Section 2 of this Addendum (Processing of Customer Personal Data) will survive for so long as Synack holds, stores or otherwise Processes Customer Personal Data.

8.2            All notices sent pursuant to this Addendum shall comply with the notice section set forth in the Agreement.

8.3            Except as required by the Privacy and Security Laws, any dispute relating to this Addendum shall be governed by and interpreted in accordance with the law of the country and subject to the jurisdiction referred to in the Agreement.

ATTACHMENT 1 TO DATA PROCESSING ADDENDUM:

STANDARD CONTRACTUAL CLAUSES

MODULE 2: CONTROLLER TO PROCESSOR TRANSFER

SECTION I

Clause 1

Purpose and scope

(a)      The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)^[1] for the transfer of personal data to a third country.

(b)     The Parties:

(i)   the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(c)        These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d)        The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

[1]   Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].

Clause 2

Effect and invariability of the Clauses

(a)       These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b)     These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a)        Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii)  Clause 8 – Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9 – Clause 9(a), (c), (d) and (e);

(iv) Clause 12 – Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18 – Clause 18(a) and (b).

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

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

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2          Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3          Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4          Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5          Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6          Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

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

8.7          Sensitive data

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

8.8          Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union^[2] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9        Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a) 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 thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

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

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

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

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c)  Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

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

Clause 14

Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards^[4];

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1        Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2        Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

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

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland (without reference to conflicts of law principles).

Clause 18

Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of the jurisdiction specified in Clause 17 above.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

ADDENDUM A TO THE STANDARD CONTRACTUAL CLAUSES:

UK INTERNATIONAL DATA TRANSFER ADDENDUM TO THE STANDARD CONTRACTUAL CLAUSES FOR TRANSFERS OUT OF UK TO THIRD COUNTRIES

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Table 4: Ending this Addendum when the Approved Addendum Changes

Part 2: Mandatory Clauses

Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎‎18 of those Mandatory Clauses.

ADDENDUM B TO THE STANDARD CONTRACTUAL CLAUSES:

SWISS ADDENDUM TO THE STANDARD CONTRACTUAL CLAUSES FOR TRANSFERS OUT OF SWITZERLAND TO THIRD COUNTRIES

(a) This Addendum amends the Standard Contractual Clauses to the extent necessary so they operate for transfers made by the data exporter to the data importer, to the extent that the Swiss DPA applies to the data exporter’s processing when making that transfer. “Swiss DPA” shall mean the Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.

(b) The Standard Contractual Clauses shall be amended with the following modifications:

(i) references to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss DPA;

(ii) references to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the Swiss DPA;

(iii) references to Regulation (EU) 2018/1725 shall be removed;

(iv) references to “EU”, “Union” and “Member State” shall be replaced with references to “Switzerland”;

(v) Clause 13(a) and Part C of Annex II are not used and the “competent supervisory authority” shall be the Swiss Federal Data Protection Information Commissioner ;

(vi) references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland” (as applicable);

(vii) in Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland; and

(viii) to the extent the Swiss DPA applies to the processing, Clause 18 shall be replaced to state: “Any dispute arising from these Clauses shall be resolved by the competent courts of Switzerland. The Parties agree to submit themselves to the jurisdiction of such courts”.

APPENDIX

Annex I

A. LIST OF PARTIES

Data exporter(s):

Data importer(s):

 B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred:

• Individuals signing onto Synack’s user platform on behalf of Client; and
• Any personal data processed during the course of cybersecurity vulnerability testing.

Categories of personal data transferred:

• Basic account information of individuals signing onto Synack’s user platform on behalf of Client (username, password, email) and user activity while on Synack’s user platform; and
• Any personal data processed during the course of cybersecurity vulnerability testing

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:

Not applicable.

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

For user activity of individuals signing onto Synack’s platform, the data is transferred on a continuous basis when the individual uses the Synack platform. All other transfers of data occur on a one-off basis.

Nature of the processing:

For Synack platform user account information and platform user activities: collection, use, analysis, storage.

Any additional personal data processed during the course of cybersecurity vulnerability testing will be incidental in nature.

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

Provide and improve cybersecurity vulnerability testing services pursuant to a Services Agreement.

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

Account details of individuals signing onto Synack’s platform will be retained as long as the Client maintains an account on the platform or otherwise in accordance with the Services Agreement or applicable law.

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

Personal data processed by sub-processors is processed for the purposes and duration of the relevant Synack services agreement or ordering document. For more information on the nature and subject matter of the processing, see Annex I.B.

C. COMPETENT SUPERVISORY AUTHORITY

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

APPENDIX

Annex II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Description of the technical and organizational security measures implemented by the Data Importer can be found in the Information Security Addendum (“ISA”). Where applicable, the ISA will serve as Annex II to the Standard Contractual Clauses.

The following table provides additional information for referencing certain technical and organizational security measures in the ISA.

APPENDIX

Annex III

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

Synack Third-Party Subprocessors may be updated from time to time at the following location: https://www.synack.com/data-processing-addendum/#subprocessorlist. Any changes to Synack Third Party Subprocessors will be posted to the foregoing site and Customer shall have ten (10) business days to object to the appointment in writing. If Customer does not object within ten (10) business days, the appointment will be deemed to be approved pursuant to Section 3.1 of the Data Processing Addendum. If the Customer does object, Synack and Customer will cooperate in good faith to resolve the objection.

[1]   Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].

[2]   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.

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

[4]   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.