Last reviewed and updated October 12, 2023

DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA“) forms part of the Master Services Agreement (the “Agreement“) between Customer and Zywave, Inc. or its affiliate as identified on an applicable order form (“Zywave“) (individually a “Party” and together the “Parties“). This DPA governs Customer’s use of Zywave’s cloud services and hosted applications (“Services“) that are available on its Website (as defined in the Agreement) with regard to the Personal Data (as defined below) that Zywave Processes on Customer’s behalf. This DPA and its exhibits only apply to the Processing of Personal Data in connection with the Services by Zywave on behalf of Customer subject to Privacy Laws (as defined below). In the event of conflict, the DPA prevails over the Agreement to the extent required by Privacy Laws. Customer’s use of the Services constitutes acceptance of the terms and conditions of this DPA.

If Customer is entering into this DPA on behalf of another company or other legal entity, Customer warrants that Customer has the authority to bind such entity and its affiliates to this DPA, in which case the term “Customer” shall refer to such entity and its affiliates.

1. Definitions
   1. Capitalized terms used and not defined herein have the meanings given them in the Agreement or in Privacy Laws.
   2. “Data Controller” or “Controller” means the entity that determines the purposes and means of the Processing.
   3. “Data Exporter” means the Party that discloses or transfers Personal Data to a Data Importer under this DPA.
   4. “Data Importer” means the Party that receives Personal Data from or is granted access to Personal Data by Data Exporter under this DPA.
   5. “Data Processor” or “Processor” means the entity which Processes Personal Data on behalf of or at the direction of the Data Controller. The term Data Processor includes any entities that act as a Service Provider (as defined under Privacy Laws).
   6. “Data Subject” means any individual about whom Personal Data may be Processed under this DPA.
   7. “EEA Restricted Transfer” means a transfer of Personal Data from or which originated in the European Economic Area (“EEA“) to a Third Country that is not considered to provide an “adequate level” of data protection by the European Commission and where such transfer is subject to the EU GDPR.
   8. “EU SCCs” means the Standard Contractual Clauses attached hereto as Exhibit A and issued by the European Commission, recognized by the Information Commission of the United Kingdom (“UK“), or by any other relevant regulatory authority.
   9. “GDPR” means the EU General Data Protection Regulation 2016/679 (“EU GDPR“) as implemented by countries within the EEA and the EU GDPR as retained as UK law by the European Union (Withdrawal) Act 2018 (“UK GDPR“) (as applicable to Processing).
   10. “Personal Data” means any information that relates to an identified or identifiable natural person that Customer provides to Zywave for Processing on Customer’s behalf pursuant to the Agreement. For the avoidance of doubt, Personal Data does not include information that Zywave uses to administer the contract, such as business contact information necessary to collect payments due to Zywave.
   11. “Personal Data Breach” means an unauthorized disclosure of or access to Personal Data or an accidental or unlawful destruction, loss or alteration of Personal Data that could reasonably require notification under Privacy Laws.
   12. “Personnel” means employees, contractors, consultants, and any other individual engaged to perform Services on Zywave’s
   13. “Privacy Laws” means the data protection laws of various jurisdictions that are applicable to the Services provided by Zywave, as determined by Zywave in its sole discretion, including without limitation, GDPR, UK GDPR, and any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, or rule applicable to Customer’s use of the Services. Privacy Laws excludes the Health Insurance Portability and Accountability Act of 1996.
   14. “Process” or “Processing” has the meaning set out in the Master Services Agreement.
   15. “Restricted Transfer” means (i) an EEA Restricted Transfer; (ii) a UK Restricted Transfer; or (iii) other transfer of Personal Data which is otherwise restricted by a relevant regulatory authority under Privacy Laws.
   16. “Subprocessor(s)” means any natural or legal person, public authority, agency, or body that Processes the Personal Data on behalf of a Processor. For the avoidance of doubt, Zywave’s personnel do not constitute Subprocessors.
   17. “Third Countries” means countries outside of the of the EEA and / or the UK.
   18. “UK Addendum” means the UK International Data Transfer Addendum which is made up of the Addendum at Exhibit B hereto incorporating the EU SCCs attached at Exhibit A hereto.
   19. “UK Restricted Transfer” means a transfer of Personal Data from or which originated in the UK to a Third Country that is not considered to provide an “adequate level” of data protection by the UK Government and where such transfer is subject to the UK GDPR.
2. Scope & Details of Processing
   1. This DPA shall only apply to the extent that Zywave is acting as a Data Processor for the applicable Services. To the extent that Zywave acts as a Data Controller, this DPA shall not apply to Zywave’s Processing of Personal Data. To the extent that Health Insurance Portability and Accountability Act of 1996 applies to Personal Data, the Parties’ applicable business associate agreement shall govern to the extent applicable. Zywave reserves the right, in its sole discretion, to change or modify all or any part of this DPA at any time, effective immediately upon publication of revised terms to the Website and Customer’s subsequent access or use of the Website. Customer’s continued use of the Services constitutes its binding acceptance of the DPA, including any changes or modifications made by Zywave as permitted above.
   2. The details of the Processing of Personal Data are contained in Annex I and in the Agreement or applicable order form.
3. Processing
   1. Zywave will Process Personal Data according to Customer’s documented instructions unless Zywave is required by Privacy Laws to otherwise Process the Personal Data. The scope of Customer’s instructions for the Processing of Personal Data is defined by the Agreement, and, if applicable, Customer’s use and configuration of the features of the Services. If Zywave believes an instruction violates Privacy Laws, Zywave will inform Customer, and may suspend the performance of such instruction until Customer has modified or confirmed its lawfulness in documented form.
   2. Zywave shall only use Personal Data to perform the Services for Customer and as otherwise permitted by the Agreement.
   3. To the extent required by Privacy Laws, Zywave is prohibited from: (i) selling the Personal Data; (ii) retaining, using, or disclosing the Personal Data for any purpose other than providing the Services specified in the Agreement and any applicable order form; and (iii) retaining, using, or disclosing the Personal Data outside of the direct business relationship with Customer. Zywave certifies that it understands and will comply with its Processor requirements in the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199) to the extent applicable to the Services.
   4. Zywave will comply with Privacy Laws in respect of the portions of the Services that are applicable to Zywave as Processor. Zywave is not responsible for determining the requirements of laws or regulations applicable to Customer’s business, or that the Services meet the requirements of laws or regulations applicable to Customer’s As between the Parties, Customer is responsible for the lawfulness of the Processing of Personal Data. Customer shall comply with Privacy Laws and will not use the Services in a manner that would violate Privacy Laws. Customer is solely responsible for maintaining the technical and organizational measures designed to protect Personal Data within Customer’s systems and networks.
4. Technical and Organizational Measures
   Taking into account the nature of the Processing and the Personal Data available to Zywave, Zywave will implement and maintain appropriate technical and organizational measures to protect Personal Data in Zywave’s possession. Such measures are subject to technical progress and further development. Zywave reserves the right to modify the measures provided that the functionality, performance, and security of the Services are not degraded.
5. Data Subject Rights and Requests
   1. Zywave will inform Customer without undue delay of requests from Data Subjects exercising their Data Subject rights (including but not limited to rectification, deletion, and access to Personal Data) addressed directly to Zywave regarding Personal Data. As between Zywave and Customer, Customer shall be responsible to handle such requests of Data Subjects. Zywave will reasonably assist Customer in handling such Data Subject requests in accordance with Section 12.
   2. Customer is solely responsible for obtaining Data Subjects’ explicit consent as required by Privacy Laws to Process Personal Data including Personal Data concerning health and genetic data in relation to the Services. Where Privacy Laws prohibit Processing of Personal Data concerning health or genetic data despite consent, Customer shall not make any such transfer to Zywave for Processing in those jurisdictions.
   3. If a Data Subject brings a claim directly against Zywave for a violation of their rights caused by Customer, Customer will reimburse Zywave for any damages or liabilities (including reasonable attorneys’ fees) payable to the Data Subject arising from such a claim. Zywave shall promptly notify Customer about the claim and give Customer the opportunity to control the defense and settlement of the claim.
6. Third Party Requests and Confidentiality
   1. Except as provided otherwise in the Agreement or this DPA, Zywave will not disclose Personal Data to any third party, unless authorized by the Customer or required by law. If a government or Supervisory Authority demands access to Personal Data, Zywave will notify Customer prior to disclosure, unless such notification is prohibited by law.
   2. Zywave requires all of its Personnel authorized to Process Personal Data to commit themselves to confidentiality and not Process such Personal Data for any other purposes, except on instructions from Customer or unless required by applicable law.
7. Audit
   1. Zywave shall maintain records and information to demonstrate its compliance with its obligations under Privacy Laws as a Processor. Zywave shall allow for, and contribute to, audits, including inspections, conducted by Customer or another auditor mandated by Customer, in accordance with the following procedures:
      1. Upon Customer’s written request, Zywave will provide Customer or its mandated auditor with the most recent certifications and summary of audit report(s) applicable to the Services, which shall be considered Zywave’s confidential information.
      2. Zywave will reasonably cooperate with Customer by providing available additional information concerning applicable security controls.
      3. If further information is legally required by Customer to comply with its own legal obligations or a governmental request, Customer will inform Zywave in writing to enable Zywave to provide such information or to grant access to it.
   2. Customer shall bear the reasonable cost of any audit conducted pursuant to this Section 7.
8. Return or Deletion of Personal Data
   Upon termination or expiration of the Agreement, Zywave will either delete or return Personal Data in its possession, except where (i) it is technically not feasible to do so; (ii) retention of the Personal Data is required by applicable law; or (iii) the Personal Data may be retained as per Zywave’s retention policy for archival purposes. In addition, this clause shall exclude any Personal Data stored in Zywave’s backup systems.
9. Subprocessors
   1. Customer authorizes Zywave to engage Subprocessors to Process Personal Data. Upon Customer’s reasonable request, Zywave shall provide Customer a list of the current Subprocessors. Zywave shall ensure that its Subprocessors are bound by obligations similar to those imposed on Zywave under this DPA. If Zywave engages a new Subprocessor that will have access to Personal Data, Zywave will notify Customer. If Customer does not object to the Subprocessor pursuant to Section 9(a) within five (5) days of receiving notice, Customer shall be deemed to accept the Subprocessor.
   2. Customer may object to the addition of a new Subprocessor if Customer reasonably believes that the use of the new Subprocessor shall violate Privacy Laws. Customer shall submit any objections in writing to Zywave and include the reason for such objection within five (5) days of receiving notice of a new Subprocessor. If Customer legitimately objects to a new Subprocessor and Zywave cannot reasonably accommodate Customer’s objection, Zywave may terminate the Agreement and Customer’s access to the Services without any incurring any liability.
   3. Zywave remains fully liable to Customer for any failure by the Subprocessor to fulfil its data protection obligations under Privacy Laws.
10. Transborder Data Processing
    Customer acknowledges and agrees that Zywave may process Personal Data in Third Countries, including (without limitation) the United States. To the extent Zywave process Personal Data in the United States, it shall do so in accordance with Zywave’s certification pursuant to the EU-US Data Privacy Framework and the UK Extension to the EU-US Data Framework certification (collectively the “Data Privacy Framework”) (and any replacement certification or framework) where Zywave has a current and valid Data Privacy Framework certification, which can be accessed at https://www.dataprivacyframework.gov/s/participant-search. In the event the Data Privacy Framework (and any replacement certification or framework) is invalidated or Zywave does not have a current and valid Data Privacy Framework certification, and only to the extent Zywave Processes in any Third Country Personal Data subject to GDPR or the UK GDPR, the parties shall comply with the obligations set out in the EU SCCs or the UK SCCs (as applicable).
11. Personal Data Breach
    Zywave will notify Customer without undue delay after becoming aware of a Personal Data Breach with respect to the Services. Zywave will promptly investigate the Personal Data Breach if it occurred on Zywave infrastructure or in another area for which Zywave is responsible and will reasonably assist Customer as set out in Section 12. Zywave will promptly provide Customer with necessary information regarding the circumstances of the Personal Data Breach, the type of Personal Data impacted, the Data Subjects impacted, and any steps Zywave takes to mitigate risk to Data Subjects. Customer shall reimburse Zywave for any reasonable costs with regard to such reasonable assistance provided by Zywave to Customer.
12. Assistance
    Zywave will provide reasonable assistance to Customer with: (i) the fulfillment of Customer’s obligations to comply with the rights of Data Subjects (ii) ensuring compliance with Customer’s obligations relating to the security of Processing, the notification and communication of a Personal Data Breach, and (iii) the completion of a Data Protection Impact Assessment, taking into account the nature of the Processing and the information available to Zywave. Customer must make a written request for any assistance referred to in this DPA. Zywave may charge Customer a reasonable fee to perform such assistance, unless such assistance may be fulfilled automatically by tools provided in the Services.
13. Term and Termination
    This DPA shall enter into force as of the effective date of the Master Services Agreement and shall continue until the expiration or earlier termination of the Master Services Agreement.

EXHIBIT A

STANDARD CONTRACTUAL CLAUSES
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) for the transfer of personal data to a third country.

(b) The Parties:

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

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

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

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

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

Clause 2
Effect and invariability of the Clauses

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

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

Clause 3
Third-Party beneficiaries

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

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

(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e);

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

(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two: Clause 12(a), (d) and (f);

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18 – Modules One and Two: 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.

MODULE TWO: Transfer controller to processor

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 (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

MODULE TWO: Transfer controller to processor

(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 business 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. 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

MODULE TWO: Transfer controller to processor

(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.

MODULE TWO: Transfer controller to processor

(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

MODULE TWO: Transfer controller to processor

(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

MODULE TWO: Transfer controller to processor

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

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

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

(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

MODULE TWO: Transfer controller to processor

(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

MODULE TWO: Transfer controller to processor

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

MODULE TWO: Transfer controller to processor

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 Netherlands.

Clause 18
Choice of forum and jurisdiction

MODULE TWO: Transfer controller to processor

(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 Netherlands.

(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.

ANNEX I(2) – MODULE 2 TRANSFERS (CONTROLLER-PROCESSOR)

This Annex includes Restricted Transfers which fall within scope of Modules 1 and 2 only.

1. LIST OF PARTIES

Data exporter(s):

Name: The individual or entity (i.e., “Customer”) that is a recipient of services or products from Zywave, that is referenced in this DPA to which these EU SCCs are appended or incorporated by reference, or otherwise accesses a Zywave Site pursuant to the End User Agreement incorporating these EU SCCs.

Address: [to be inserted by Customer]

Contact person’s name, position and contact details: [to be inserted by Customer]

Activities relevant to the data transferred under these Clauses: Data to be processed as specified in the written Agreement between Customer and Zywave.

Signature and date: captured electronically

Role: Controller

Data importer(s):

Name: Zywave, Inc.

Address: 10100 W. Innovation Drive, Suite 300, Milwaukee, WI 53226

Contact person’s name, position and contact details: Data Privacy Officer Alex Britton; Vice President, General Counsel; [email protected]

Activities relevant to the data transferred under these Clauses: Data to be Processed as specified in the written Agreement between Customer and Zywave.

Signature and date: captured electronically

Role: Processor

2. DESCRIPTION OF TRANSFER
3. COMPETENT SUPERVISORY AUTHORITY

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

Pursuant to Clause 13, the supervisory authority of the EEA country where (i) the data exporter is established; or where (ii) the EU representative of the data exporter is established; or where (iii) the data subjects whose personal data are transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located.

………………………………………………………………………………………………………

ANNEX II

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

Data Importer shall use the Technical and Organisational Measures specified in the underlying Agreement between the Data Exporter and Data Importer.

EXHIBIT B

UK STANDARD CONTRACT CLAUSES ADDENDUM

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

Entering into this Addendum

1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws
7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the Parties, the Parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
    1. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
    2. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
    3. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
15. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
    1. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
    2. In Clause 2, delete the words:
       “and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
    3. Clause 6 (Description of the transfer(s)) is replaced with:
       “(The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
    4. Clause7(i) of Module 1 is replaced with:
       “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
    5. Clause8(i) of Modules 2 and 3 is replaced with:
       “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
    6. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
    7. References to Regulation (EU) 2018/1725 are removed;
    8. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
    9. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
    10. Clause 13(a) and Part C of Annex I are not used;
    11. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
    12. In Clause 16(e), subsection (i) is replaced with:
        “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply”;
    13. Clause 17 is replaced with:
        “These Clauses are governed by the laws of England and Wales.”;
    14. Clause 18 is replaced with:
        “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
    15. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved Addendum which:
    1. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
    2. reflects changes to UK Data Protection Laws;

    The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
    1. its direct costs of performing its obligations under the Addendum; and/or
    2. its risk under the Addendum,

    and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

ALTERNATIVE PART 2 MANDATORY CLAUSES: