Data Processing Addendum

Updated September 13, 2021

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Exporting & Importing Organization
Exporting & Importing Organization
Company Name
Address
Address
Telephone:
Email:
Data protection registration:
Oyster HR, Inc
251 Little Falls Drive
Wilmington, DE 19808, USA
Telephone: +1.803.526.7918
ICO/Data protection registration: ZA784786

Customer Data” means any Personal Data Processed by Oyster on behalf of Customer Company pursuant to or in connection with the Agreement.

Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, repealed, consolidated or replaced from time to time.

Data Subject” means the individual to whom Personal Data relates.

"Europe" means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.

European Data” means Personal Data that is subject to the protection of European Data Protection Laws.

"European Data Protection Laws" means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council 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) ("GDPR"); (ii) Directive 2002/58/EC concerning the Processing of Personal Data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms part of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.

Instructions” means the written, documented instructions issued by a Controller to a Controller or a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

"Permitted Affiliates" means any of your Affiliates that (i) are permitted to use the Services pursuant to the Agreement, but have not signed their own separate agreement with us and are not a “Customer Company” as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to European Data Protection Laws.

Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Services. Personal Data Breach will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

Standard Contractual Clauses” means the standard contractual clauses approved pursuant to the European Commission’s decision (EU) 2021/914 of 4 June 2021, in the form set out at Schedule 4; as may be amended, superseded or replaced.

Sub-Processor” means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Services under the Agreement. Sub-Processors may include third parties or our Affiliates but will exclude any Oyster employee or consultant.

2. Oyster Obligations

Compliance with Laws. We are responsible for complying with all requirements for protecting Personal Data under applicable Data Protection Laws. We will inform you without undue delay if we are not able to comply with our responsibilities under this ‘Compliance with Laws’ section or applicable Data Protection Laws.

(i) Controller and Processor Obligations. When providing Services, Oyster (and our local partners and vendors) may collect and determine the purposes and means of Processing Personal Data, as well as exporting and importing the Personal Data. For example, we process payroll and benefits based on information obtained directly from Team Members, and we send direct communication to Team Members about their employment. In some instances, however, we may process Personal Data on your behalf, according to your Instructions. Accordingly, Oyster may be a Controller and a Processor throughout the course of our business relationship. Regardless of where we are Processing Personal Data and whether we are a Controller or Processor, we use the GDPR and the Standard Contractual Clauses as a guide for our compliance obligations. The details of our Personal Data Processing are set out in Schedule 1 to this Addendum.

(ii) Standard Contractual Clauses. Regardless of where we are Processing Personal Data, we use the GDPR as a guide for our compliance obligations. The GDPR imposes different obligations on Controllers and Processors. When Oyster is acting as a Controller, we will comply with and satisfy the Controller obligations set out in the Standard Contractual Clauses attached to this DPA as Schedule 4 and 4(a). When we are acting as a Processor, we will comply with and satisfy the Processor obligations set out in Schedule 4 and 4(b). If we are Processing European Data pursuant to your Instructions and we believe that your Instructions infringe European Data Protection Laws, we will inform you without delay.

Security. We are responsible for independently determining whether the data security provided by the Service adequately meets our obligations under applicable Data Protection Laws. We have taken appropriate technical and organizational measures to ensure a level of protection for data we control and process appropriate to the risk, taking into account the state of the art, the implementation costs and the nature, scope, circumstances and purposes of the Processing, as well as the varying probability of occurrence and severity of the risk to the rights and freedoms of natural persons. See Schedule 2 for an overview of our Technical and Organization Measures.

Applicability of Jurisdiction-Specific Terms. To the extent Oyster Processes Customer Data subject to the protections of Data Protection Laws outside of Europe, the applicable terms of such laws will apply to Oyster’s Processing of Personal Data in connection with the Agreement. In the event of a conflict or ambiguity between the requirements of any Data Protection Laws and this DPA, the terms of the Data Protection Laws will take precedence to the extent of their applicability to Oyster.

3. Customer Company Obligations

Compliance with Laws. You are responsible for complying with all requirements for protecting Personal Data under applicable Data Protection Laws. To enable the provision of Services, you may collect and determine the purposes and means of Processing Personal Data, as well as exporting and importing the Personal Data. Accordingly, you may be a Controller and/or a Processor throughout the course of our business relationship. You will inform us without undue delay if you are not able to comply with your responsibilities under this ‘Compliance with Laws’ section or applicable Data Protection Laws

Obligations. In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for:

(i) the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data;

(ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer Company for marketing purposes);

(iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA);

(iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and

(v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices.

European Data and the Standard Contractual Clauses. If you are Processing European Data, the GDPR and the Standard Contractual Clauses govern your compliance obligations. The GDPR imposes different obligations on Controllers and Processors. When acting as a Controller, you will comply with and satisfy the Controller obligations set out in the Standard Contractual Clauses attached to this DPA as Schedule 4 and 4(a). When acting as a Processor, you will comply with and satisfy the Processor obligations set out in Schedule 4 and 4(b). If you are Processing European Data pursuant to our Instructions and you believe that our Instructions infringe European Data Protection Laws, you shall inform us without delay.

Security. You are responsible for independently determining whether the data security provided by the Service adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Service, including protecting the security of Personal Data in transit to and from the Service (including to securely backup or encrypt any such Personal Data).

4. Data Subject Requests

The Platform provides you with a number of controls that you can use to retrieve, correct, delete or restrict Personal Data, which you can use to assist it in connection with its obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws ("Data Subject Requests").

To the extent that you are unable to independently address a Data Subject Request through the Platform, then upon your written request, we will provide reasonable assistance to you to respond to any Data Subject Requests.

If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

5. Sub-Processors

Agreement to Sub-Processor Use; Process for Objections to Changes. You agree that we may engage Sub-Processors to Process Personal Data on your behalf. We have currently appointed, as Sub-Processors, the Oyster Affiliates and third parties listed in Schedule 3 to this DPA. We will notify you of any changes to Sub-Processors by updating Schedule 3 to this DPA and will give you the opportunity to object to the engagement of a new Sub-Processor on reasonable grounds relating to the protection of Personal Data within 30 days after updating Schedule 3 to this DPA. If you notify us of such an objection, the parties will discuss your concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, we will, at our sole discretion, either not appoint the new Sub-Processor, or permit you to suspend or terminate the affected Service in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred prior to suspension or termination).

Responsibility for Sub-Processor Compliance. Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processor that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processor. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of our obligations under this DPA.

6. Data Transfers

Acknowledgement of Personal Data Transfers. You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Service in accordance with the Agreement, and in particular that Personal Data may be transferred to and Processed by Oyster in the United States and to other jurisdictions where Oyster Affiliates and Sub-Processors have operations. Wherever Personal Data is transferred outside its country of origin, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

Transfer Mechanisms for Data Transfers. Oyster shall not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.

You acknowledge that in connection with the performance of the Services, Oyster is a recipient of European Data in the United States. The parties agree to abide by and process European Data in compliance with the Standard Contractual Clauses (See Schedule 4). The parties agree that for the purposes of the Standard Contractual Clauses: Oyster will be the "data importer" and Customer Company will be the "data exporter" If and to the extent the Standard Contractual Clauses (where applicable) conflict with any provision of this DPA, the Standard Contractual Clauses will prevail to the extent of such conflict.

7. Parties to this DPA

Permitted Affiliates. By signing the Agreement, you enter into this DPA on behalf of yourself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of your Permitted Affiliates, thereby establishing a separate DPA between us and each such Permitted Affiliate subject to the Agreement and the ‘General Provisions’ and ‘Parties to this DPA’ sections of this DPA. Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the purposes of this DPA only, and except where indicated otherwise, the terms “Customer Company”, “you” and “your” will include you and such Permitted Affiliates.

Authorization. The legal entity agreeing to this DPA as Customer Company represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.

Remedies. Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against us directly by itself, the parties agree that (i) solely the Customer Company entity that is the contracting party to the Agreement will exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer Company entity that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer Company entity that is the contracting entity is responsible for coordinating all communication with us under the DPA and will be entitled to make and receive any communication related to this DPA on behalf of its Permitted Affiliates.

Other Rights. The parties agree that you will, when reviewing our compliance with this DPA as permitted hereunder, take all reasonable measures to limit any impact on us and our Affiliates by combining several audit requests carried out on behalf of the Customer Company entity that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.

8. General Provisions

Amendments. Notwithstanding anything else to the contrary in the Agreement, we reserve the right to make any updates and changes to this DPA.

Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.

Limitation of Liability. Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the 'Limited Liability' section of the Oyster Terms and Conditions and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if Oyster is not a party to the Agreement, the ‘Limited Liability’ section of the Oyster Terms and Conditions will apply as between you and Oyster, and in such respect any references to ‘Oyster’, ‘we’, ‘us’ or ‘our’ will include both Oyster and the Oyster entity that is a party to the Agreement. In no event shall either party's liability be limited with respect to any individual's data protection rights under this DPA (including the Standard Contractual Clauses) or otherwise

Governing Law. This DPA will be governed by and construed in accordance with the ‘Governing Law’ section of the Oyster Terms, unless required otherwise by Data Protection Laws.

Choice of Forum and Jurisdiction. In the event of a dispute or claim brought by a Data Subject or the authority concerning the Processing of Personal Data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion. The parties agree to respond to any generally available non-binding mediation procedure initiated by a Data Subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes. Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.

Schedule 1
 Details Of Processing Of Personal Data
Nature and Purpose of Processing
Processing employment related data provided to Oyster or uploaded via Oyster’s SaaS application, in order for Oyster to perform the Services pursuant to the Service Agreement.
Duration of Processing
Subject to the 'Deletion or Return of Personal Data' section of this DPA, Oyster will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.
Categories of Data Subjects
Team Members, Agents, Contractors, Customer Companies, Advisors, Investors, Business Partners, and Vendors of Oyste
Team Members, Business Partners, Vendors, Agents, Contractors, and Advisors of Customer Company
Customer Company’s users authorized by Customer Company to use the Services
Types of Personal Information
First and last name
Sex
Title
Position
Employer
Education
Citizenship
Contact information (company, email, phone, physical business address)
Identification Data (notably email addresses, and phone numbers)
Electronic identification data (notably IP addresses and mobile device IDs)
Special Categories of Data (only where required by regulatory authority)
Religion
Political Affiliation
Labor Union Membership
Processing Operations
Personal Data will be Processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:
Storage and other Processing necessary to provide, maintain and improve the Services provided to you; and/or
Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.
Schedule 2
Technical and Organizational Measures

22 February 2021

The General Data Protection Regulation (GDPR) requires Oyster HR, Inc. (“Oyster”) to take appropriate technical and organizational measures to ensure a level of protection for data it controls and processes appropriate to the risk, taking into account the state of the art, the implementation costs and the nature, scope, circumstances and purposes of the processing, as well as the varying probability of occurrence and severity of the risk to the rights and freedoms of natural persons.

While not every country adheres to the GDPR, or even has data privacy protection standards, we believe that everyone is entitled to data privacy protection. We are people-centric and “privacy first”. To demonstrate compliance with GDPR and other regulations, Oyster has adopted internal policies and implemented measures based on the principles of data protection by design and data protection by default.

📐 By Design
Oyster approaches legal requirements, including privacy and data protection issues, using design principles to make sure that from the first brainstorm to implementation and throughout its lifecycle, all Oyster systems, services, products and processes are developed with a lens towards compliance.

🔒 By Default
We provide our Customer Companies and Team Members with a lot of options, but security is not one of them. Oyster ensures data protection by default by limiting the amount and manner of data that is processed to achieve a specific goal. In short, only individuals that need to access the data, have the ability to get into the figurative file cabinet where the data is kept, and even then, that individual can only access the file they need for a particular purpose.

👩🏫 Organization Measures

1. We are committed! All Oyster staff, contractors, vendors, and customers are bound in writing to confidentiality and data protection requirements at the beginning of our working relationship.

2. We have policies! Oyster staff are provided with concrete guidelines about how to safeguard and process personal data (e.g. guidelines for home and teleworking or guidelines for the use of IT, Internet and e-mail)..

3. We have processes! Before, during and after employment, we have processes to ensure staff managed personal data responsibly This includes identity verification, access rights requests to files, folders, and databases, and documented offboarding processes (incl. withdrawal of access rights, confidential documentation, release and transfer of data, etc.) upon termination of employment.

4. We train! Oyster staff are trained annually about the policies, processes, and best practices

5. We have rules! We have controls in place to ensure configuration, monitoring, and maintenance of technology and information systems according to prescribed internal and adopted industry standards (e.g. secure disposal of media to render all data contained therein as undecipherable or unrecoverable).

6. We test!  We regularly review these measures and risk assessments, report those findings to our founders, and make continual improvements. There is always room for improvement. And by the way, when we make an improvement, we carefully test, log, approve and monitor all those changes to our Platform and information assets.

7. We have a designated privacy person! Oyster appointed a data protection officer (DPO) to work towards compliance with various data protection regulations, including setting up and developing data protection policies, process, training, as well as monitoring changing regulations and how we can best implement them. Contact our DPO at Privacy@OysterHR.com

💾 Technical Measures

1. We love encryption and walls. Communication with Oyster platform and applications utilizes cryptographic protocols such as SSL to protect information in transit over public networks. Within the internal network, applications follow a multi-tiered model which provides the ability to apply security controls between each layer.

2. We separate data. We built data security controls into our platform, which include logical segregation of data, and where applicable, utilization of commercially available and industry-standard encryption technologies.

3. We limit access. We grant access on a need-to-know and least privilege basis, based on job functions. We also review access periodically and revoking/changing access promptly when employment terminates or changes in job functions occur. Staff, customers, vendors, and Team Members only see what their limited access allows them to see.

4. Our office is an Amazon data warehouse. We are a fully distributed company with no physical premise to secure. Our data is housed in Ireland by Amazon in an environment designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of AWS facilities, and (iii) guard against environmental hazards such as heat, fire and water damage. They are also SOC 1,2,3, ISO 27001/27017/27018, and PCI-DSS compliant.

5. We keep our eyes open. Our engineering team conducts system audits, event logging, and related monitoring procedures to proactively record user access and system activity for routine review.

6. We check our lists twice. We undergo vulnerability assessment, patch management, and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.

7. We have a plan. When we do find something awry, our incident response plan guides Oyster’s investigation, response to, mitigation of any problem related to our technology and information assets.

8. We have a back up plan.  Oyster has a business continuity plan designed to maintain service and/or recovery from foreseeable emergency situations or disasters. Just so you know, your data is securely backed up on a regular basis.  And we never move user data out of the secured environment for testing or any other reason.

Oyster may change these technical and organizational measures at any time, without notice, so long as any such revisions will not materially reduce or weaken the protection provided for personal data that we process while services.

Schedule 3
Sub-Processor List

Effective Date September 1, 2021

The Policy.

What is a Sub-Processor?  A Sub-Processor is a third party data processor engaged by Oyster, including entities from within Oyster who have or potentially will have access to or Process data on behalf of Oyster, which may contain Personal Data. Oyster engages different types of Sub-Processors to perform various functions as explained below.

How we keep your sub-processed data safe.  Oyster works hard to use a reasonable selection process, by which it evaluates the security, privacy and confidentiality practices of proposed Sub-Processors that may have access to or otherwise process Personal Data.

Oyster generally requires its Sub-Processors to satisfy the same obligations as those required of Oyster as set forth in our Data Processing Agreement (“DPA”), including but not limited to the requirements to:

Process Personal Data according to the data controller’s documented instructions;
Use only workers who are reliable and are obligated to observe data privacy and security according to the applicable data protection laws;
Provide regular training in security and data protection to workers that have access to Personal Data;
Implement and maintain appropriate measures (including measures that are relevant to the sub-Processor’s processing of Personal Data on Oyster’s behalf) and provide an annual certification that shows compliance with this obligation. In the absence of such certification Oyster reserves the right to audit the Sub-Processor;
Promptly inform Oyster about any actual or potential security breach; and
Cooperate with Oyster in order to deal with requests from Controllers, Data Subjects or data protection authorities, as needed.

This policy does not give Customer Companies any additional rights or remedies and should not be construed as a binding agreement. The information is provided to illustrate Oyster’s process for Sub-Processors as well as to provide the actual list of third party Sub-Processors and content delivery networks used by Oyster as of the date of this policy.

The List.

Third-party Sub-Processors. The following is an up-to-date list of the names and locations of Oyster’s approved Sub-Processors and content delivery networks.

Sub-Processor
Processing Activity
Privacy Policy (see link for processing location)
Amazon Web Services, Inc.
Virtual data center services
https://aws.amazon.com/privacy/*Oyster’s data is stored in Ireland
Asana
Professional service project management
Calendly
Calendar scheduling
Dropbox
File storage
Github
Software development management and repository
Google Analytics
Analytics and insights for Oyster websites
Google Cloud Platform
Virtual data center services
Google G-Suite
Corporate platform for file storage and communication
Greenhouse
Talent acquisition management
HelloSign
Electronic document signature management
HelloWorks
Workflow and data collection
Heroku (Salesforce)
Software development management and repository
Intercom
Cloud Service, Helpdesk ticketing tool
Jotform
Form creation and data collection, report generation
MailChimp
Communication platform
Microsoft
Corporate platform for file storage and communication
Moneycorp
Foreign exchange and global payment services
Okta
Systems access management
Postmark
Communication platform
Salesforce
Relationship management, sales and marketing services
Slack
Internal communication
Stripe
Payment processing services
SurveySparrow
Form creation and data collection, report generation
Typeform
Form creation and data collection, report generation
Webflow
Website development
Zendesk
Cloud Service, Helpdesk ticketing tool

Oyster Group Sub-Processors.  The following entities are members of the Oyster Group. Accordingly, they function as Sub-Processors to provide the Services. Each entity supports Oyster HR, Inc. in providing global consulting and workforce management, contractor management, and/or other related services.

Entity Name
Country
Oyster HR, Inc.
United States
Oyster HR Ltd
United Kingdom
Oyster HR PTY LTD
Australia
Oyster HR Inc
Canada‍
Oyster HR Ireland Limited.
Ireland
Oyster HR France SAS.
France
Oyster HR Americas, Inc
United States
Oyster HR Spain, SL
Spain
Oyster HR Netherlands BV
Netherlands, France
Oyster HR SG PTE
Singapore
Oyster HR Switzerland GmbH
Switzerland
Schedule 4
Standard Contractual Clauses
Section I - GOVERNANCE

Clause 1: Purpose and Scope

(a) The purpose of this agreement 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 (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 (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.

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

Clause 2: Effect and Invariability of the Clauses

(a) 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 data to a third country

(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

Each party will comply with the obligations set out in the following clauses as applicable to its role as data processor or data controller.

Schedule 4(a) Controller-to-Controller

Schedule 4(b) Controller-to-Processor

SECTION II – OBLIGATIONS OF THE PARTIES

Each party will comply with the obligations set out in the clauses linked above as applicable to its role as data processor or data controller.

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;

(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 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 England.

 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 United Kingdom.

(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.

Schedule 4(a)
Standard Contractual Clauses: Controller to Controller
SECTION I - GOVERNANCE

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 8.5 (e) and Clause 8.9(b);
(iii)  N/A
(iv)  Clause 12(a) and (d);
(v)   Clause 13;
(vi)  Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).

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

Clause 4: Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

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

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

Clause 5: HierarchyIn 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.

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 and signing the DPA.

(b) Once it has completed and signed the DPA, 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 the DP

(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   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. It may only process the personal data for another purpose:

(i) where it has obtained the data subject’s prior consent;
(ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.


8.2   Transparency
(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:

(i) of its identity and contact details;
(ii) of the categories of personal data processed;
(iii) of the right to obtain a copy of these Clauses;(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.

(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.

(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties 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.

(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.


8.3  Accuracy and data minimisation
(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.

(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.

(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.


8.4 Storage limitationThe data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.


8.5 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (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.

(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(c) The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(d) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.

(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.

(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.

(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.


8.6   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 or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.


8.7   Onward transfers
The data importer shall not disclose the personal data 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’) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

(i)  it is to a country benefiting 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 of Regulation (EU) 2016/679 with respect to the processing in question;
(iii)  the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
(iv)  it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
(v)   it is necessary in order to protect the vital interests of the data subject or of another natural person; or
(vi)  where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.

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


8.8   Processing under the authority of the data importer      
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.


8.9   Documentation and compliance
(a)  Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.

(b) The data importer shall make such documentation available to the competent supervisory authority on request.

Clause 9: Use of sub-processorsN/A


Clause 10: Data subject rights
(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

(b) In particular, upon request by the data subject the data importer shall, free of charge:

(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
(ii)  rectify inaccurate or incomplete data concerning the data subject;
(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based

(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.

(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter ‘automated decision’), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:

(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.

(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.

(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.

(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.


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) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.

(c) 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.

(d) The Parties agree that if one Party is held liable under paragraph (c), 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.

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


Clause 13: Supervision
(a) 

(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.(i) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I, shall act as competent supervisory authority.(ii) Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I, shall act as competent supervisory authority.
(iii) Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex I, 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.

Schedule 4(b)
Standard Contractual Clauses: Controller to Processor
SECTION I - GOVERNANCE


​​Clause 3: Third-party beneficiaries(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i)   Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii)  Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v)  Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);(viii)Clause 18(a) and (b)

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


Clause 4: Interpretation
(a)  Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

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

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


Clause 5: Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.


Clause 6: Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.


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 and signing the DPA

(b) Once it has completed and signed the DPA, 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 the DPA.

(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, 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. 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.


8.8   Onward transfersThe 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 (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 benefiting 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
General Written Authorisation. The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] 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. 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, 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.

Appendix

EXPLANATORY NOTE:It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used

AnnexI
Parties and Details of the Transfer

Refer to the DPA and Schedule 1 thereto, which identifies the parties and agreed upon Personal Data Processing parameters.

Annex II
Technical and Organizational Measures to Ensure the Security of the Data

Refer to the DPA and Schedule 2 thereto, which describes the Technical and Organizational Measures implemented by Oyster.

Annex III
List of Sub-Processors

Refer to the DPA and Schedule 3 thereto, which contains a list of Sub-Processors engaged by Oyster to Process Personal Data.

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