Data Processing Agreement

Last modified: August 12, 2021

This Data Processing Agreement (“DPA”) is entered into by and between the Client on behalf itself and
its Affiliates (the “Client”) and Influ2 Inc., having business address at 1250 Borregas Avenue #44 Sunnyvale, CA 94089, USA (“The Vendor”) on behalf of itself and its Affiliates.
The Effective Date hereof shall be the first date when either the Client accepts the Influ2 Terms of Services (the “Agreement”) through the Website or the Client and Influ2 enter into the Order Form.
This DPA constitutes an integral part of the Agreement and Order Form and is hereby incorporated therein by reference. All the definitions have the same meaning as they are used in the Agreement and Order Form unless they are specially defined hereby.

1. DEFINITIONS

In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth opposite each one of them:

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of 75%;

1.2. The terms “Commission”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Special Categories of Data”, “Process/Processing”, “Controller”, “Processor”, and “Supervisory Authority” shall have the same meanings given to them in the GDPR (or where the same or similar terms are used under another applicable Data Protection Law, the meanings given to such terms under such Data Protection Law).

1.3. “Client’s Personal Data” means any Personal Data processed by the Vendor on behalf of the Client pursuant to or in connection with the Vendor’s Services;

1.4. “Sensitive Personal Data” is a subset of Personal Data, which due to its nature, has been classified by applicable law or by the Client as deserving additional privacy and security protection. Sensitive Personal Data consists of, in particular:

     1.4.1 all government-issued identification documents and numbers (including US Social Security numbers, driver’s license numbers, and passport numbers);

     1.4.2. all financial information, including any consumer or spending habits, and any account numbers (bank and non-bank financial services account numbers, credit/debit card numbers, and other information if that information would permit access to a financial account);

     1.4.3. any Personal Data pertaining to the categories specified in Articles 9-10 of the GDPR;

     1.4.4. all employee, employment candidate, and payroll information and data; and

     1.4.5. Any other Personal Data designated by the Client as Sensitive Personal Data.

1.5. EU Data Protection Laws” means EU Directive 95/4ECEC, as transposed into domestic legislation of each Member State, and as amended, replaced, or supplemented, including its replacement by GDPR;

1.6. “GDPR” means EU General Data Protection Regulation 2016/679 and any subsequent amendments, replacements, or supplements;

1.7. “Standard Contractual Clauses” mean the Annex to the Commission Implementing Decision on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council.

1.8. “Sub Processor” means any third party engaged directly by the Vendor to process any of the Client’s Personal Data pursuant to or in connection with the Vendor’s Services. The term shall not include employees or contractors of the Vendor;

1.9. “Client” means the Client (as specified in the relevant Purchase Order) and any of its Affiliates;

1.10. “Vendor’s Services” means any services provided by the Vendor to the Client, including any software or platform services, pursuant to the Agreement, Purchase Order, license, subscription, or other legal instruments;

2. SCOPE OF PROCESSING

2.1. The Vendor shall process the Client’s Personal Data as described in appendices to the Standard Contractual Clauses attached hereto as Annex. The Vendor shall process the Client’s Personal Data as a Data Processor acting on behalf of the Client as the Controller of such Personal Data.

2.2. The Client hereby instructs the Vendor to process the Client’s Personal Data only for the limited purposes of providing the Vendor’s Services to the Client. Under no circumstances shall the Vendor process any of the Client’s Personal Data for its own purposes, thereby becoming a data controller of such personal data itself.

2.3. The Vendor shall only process the Client’s Personal Data in accordance with (i) the terms of this DPA, (ii) the terms of the existing agreement between the Parties, (iii) solely on the Client’s documented instructions unless the processing is required by applicable laws, and (iv) in compliance with applicable laws, in particular, EU Data Protection Laws and Standard Contractual Clauses attached hereto as Annex.

2.4. The Vendor shall notify the Client if the Vendor determines that it can no longer meet its obligations under this DPA. Notwithstanding anything contained in any agreement between the Parties, the Client reserves the right to terminate immediately, without penalty, all engagements, and agreements with the Vendor on receiving notification under this Clause.

3. SUBPROCESSING

3.1. The Vendor shall not subcontract any processing of the Client’s Personal Data to any third party without the prior written consent of the Client of each such subcontracting activity. Notwithstanding the foregoing, the Client authorizes the Vendor to engage a Sub Processor for the limited purposes of processing the Client’s Personal Data, only in the event that the Vendor:

     3.1.1. Provides to the Client at least 30 days prior written notice of its intention to engage or replace a Sub Processor. Such notice shall include at least: (i) the name of the Sub Processor; (ii) type of personal data processed; (iii) description of data subjects and (iv) location of the data processing;

     3.1.2. Conducts the level of due diligence necessary to ensure that such Sub Processor is capable of meeting the requirements of this DPA and any applicable EU Data Protection Laws;

     3.1.3. Ensures that the arrangement between the Vendor and the Sub Processor is governed by a binding contract, which requires a Sub Processor to process the Client’s Personal Data in accordance with this DPA, or standards that are no less demanding of this DPA.

     3.2 The Client may object to the engagement of any Sub Processor on any privacy or security grounds. In such case, the Vendor shall not engage a Sub Processor for the provision of the Vendor’s Services to the Client, or the Client may terminate or suspend its agreement with the Vendor without penalty.

4. DATA TRANSFERS

4.1. Except for cases where the Vendor themselves carries out the Personal Data Processing and when the Personal Data is collected within the territory of the USA, without the Client’s prior written consent, the Vendor may not transfer or permit the transfer of the Client’s Personal Data to any territory which is (i) outside the EEA and (ii) not recognized by the European Commission as providing an adequate level of data protection. Where the Client has permitted such a transfer, the Vendor or the Vendor’s Sub Processors must ensure a legal basis for the transfer of said data, e.g., Standard Contractual Clauses or binding corporate rules, etc.

4.2. By way of this DPA, the Client consents to the transfer of the Client’s Personal Data to the Vendor and each of the Sub Processors listed in ANNEX III – LIST OF SUB-PROCESSORS on the base of the Standard Contractual Clauses. Any transfer made under this DPA, including to any Sub Processor, shall be governed by Standard Contractual Clauses, which shall be deemed incorporated by reference as an integral part of this DPA.

5. VENDOR’S PERSONNEL

5.1. The Vendor shall conduct an appropriate background investigation of all employees or contractors (the “Vendor’s Personnel”) of the Vendor who may have access to the Client’s Personal Data prior to allowing them such access. If the background investigation reveals that the Vendor’s Personnel are not suited to access the Client’s Personal Data, then the Vendor shall not provide the Vendor Personnel with access to the Client’s Personal Data.

5.2. The Vendor shall ensure that all the Vendor Personnel: (i) has such access only as necessary for the purposes of providing the Client Services and complying with applicable laws; (ii) is contractually bound to confidentiality requirements no less onerous than this DPA; and (iii) is provided with appropriate privacy and security training.

5.3. Upon request, the Vendor shall provide the Client a list of all individual employees and contractors (including former individual employees and contractors) who have (or have had) access to the Personal Data.

6. SECURITY

6.1. The Vendor shall assess and implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk presented by the processing of the Client’s Personal Data including:

     6.1.1. The pseudonymization and/or encryption of Personal Data, which in the case of any Sensitive Personal Data, shall be transmitted only via secured encrypted channels and in encrypted form;

     6.1.2. The ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services;

     6.1.3.. The ability to restore the availability and access to the Client’s Personal Data in a timely manner in the event of a physical or technical incident; and

     6.1.4. A process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.

6.2. In assessing the appropriate level of technical and organizational measures, the Vendor shall consider the risks presented by the Processing, including the risks of Personal Data Breach, accidental or unlawful loss, destruction, alteration, unauthorized disclosure of or access to the Client’s Personal Data.

6.3. The Vendor shall keep records of its processing activities performed on behalf of the Client, which shall include at least:

     6.3.1. The details of the Vendor as Personal Data Processor, any representatives, Sub Processors, data protection officers, and the Vendor Personnel having access to the Client’s Personal Data;

     6.3.2. The categories of Processing activities performed;

     6.3.3. Information regarding cross-border data transfers, if any; and

     6.3.4. Description of the technical and organizational security measures implemented in respect of the processed Personal Data.

7. DATA SUBJECT RIGHTS

7.1. The Vendor shall reasonably assist the Client in responding to requests to exercise Data Subject rights under applicable laws, including EU Data Protection Laws.

7.2. The Vendor shall:

     7.2.1. Promptly notify the Client if it receives a request from a Data Subject under EU Data Protection Laws in respect of the Client’s Personal Data; and

     7.2.2.Ensure that it does not respond to that request except on the documented instructions of the Client or as strictly required by applicable laws to which the Vendor is subject.

8. LEGAL DISCLOSURE; PERSONAL DATA BREACH

8.1. The Vendor shall notify the Client without undue delay and within 24 hours of the Vendor becomes aware of:

     8.1.1 any legally binding request for disclosure of the Client’s Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; and

     8.1.2. any actual or suspected Personal Data Breach affecting the Client’s Personal Data. The Vendor shall provide the Client with sufficient information to allow the Client to meet any obligations to report or inform Data Subjects or Supervisory Authorities of the Personal Data Breach under the applicable laws, including any information set out in Article 33(3) of the GDPR. Other than as required by law, the Vendor shall not make any public statements or other disclosures (including any communication to Data Subjects or Supervisory Authorities) about a Personal Data Breach affecting the Client’s Personal Data without the Client’s prior written consent, which is not provided through this DPA.

8.2. The Vendor shall take any actions necessary to investigate any suspected or actual Personal Data Breach and prevent any further Personal Data Breach upon discovering the same.

8.3. The Vendor shall cooperate with the Client and take such steps as are directed by the Client to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.

8.4. The Vendor shall ensure that all the Vendor Personnel are informed of the confidential nature of the Client’s Personal Data and are required to keep it confidential; have undertaken training related to handling Personal Data, and are aware of the Vendor’s and their duties and obligations under this DPA.

9. DELETION OR RETURN OF CLIENT’S PERSONAL DATA

9.1. Upon expiration or termination of the provision of the Vendor’s Services, the Vendor shall promptly delete or return all copies of the Client’s Personal Data, at the Client’s choice, except as required to be retained in accordance with applicable law.

9.2. Upon the Client’s prior written request, the Vendor Chief Privacy Officer or equivalent shall provide written certification to the Client that it has fully complied with this section.

10. PROVISION OF INFORMATION

     10.1. The Vendor shall provide assistance to the Client with any data protection impact assessments, prior consultations with Supervisory Authorities or other competent data privacy authorities, which the Client reasonably considers required under applicable laws. The scope of such assistance shall be limited to the Processing of the Client’s Personal Data by the Vendor.

11. MISCELLANEOUS

11.1. Severance. Should any provision of this DPA be determined invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

Notice. All notices required under this DPA shall be sent to the Client by post to address specified in the relevant Purchase Order and by email to the email address used by the Client to contact the Vendor. Notices to the Vendor shall be sent to: Influ2, 1250 Borregas Avenue #44 Sunnyvale, CA 94089, USA and by email to: privacy@influ2.com

11.2. Order of precedence. In the event of any conflict between the terms of this DPA and other documents binding on Parties, the terms of these documents will be interpreted according to the following order of precedence: (i) this DPA; (ii) the Client’s Privacy Policy; (iii) terms of the Agreement, Purchase Order, license, or subscription, pursuant to which the Vendor’s Services are provided.

11.3. Duration and termination. The duration of this DPA shall correspond to the Client’s use of the Vendor’s Services. In case of termination of the DPA, irrespective of the legal basis thereof, the Vendor must provide the necessary termination services and, as part thereof, comply with the Client’s instructions, including but not limited to, instructions as set out in clause Error: Reference source not found.

ANNEX I: STANDARD CONTRACTUAL CLAUSES

These Standard Contractual Clauses are effective as of September 27, 2021. They are an integral part of the DPA, and the Standard Contractual Clauses shall prevail over the relevant provisions of the DPA, which contradict the terms of the 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. Data exporter — the Client as specified by the Data Processing Agreement; and

     ii. Data importer — the Vendor, Influ2 Inc, have agreed to these standard contractual clauses (hereinafter: the “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); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

     iii. Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

     iv. Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: 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, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

     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 - Optional

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 organizational measures, to satisfy its obligations under these Clauses.

8.1. Instructions

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

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

8.2. Purpose limitation

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

8.3. Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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 Union4 (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:

     a. 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;

     b. 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;

     c. the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

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

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

8.9. Documentation and compliance

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

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

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

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

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

Clause 9

Use of sub-processors

     a. 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 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. The rules of section 3 of the DPA supplements this clause 9(a) hereof.

     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.

     d. 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

     d. 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.

     e. 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.

     f. 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.

     g. 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.

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

Clause 13

Supervision

     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 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 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 behavior is monitored, are located shall act as competent supervisory authority.

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

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

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

     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

     b. 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).

     c. 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.

     d. 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;
the data importer is in substantial or persistent breach of these Clauses; or

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

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

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

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

Clause 17
Governing law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Cyprus.

Clause 18
Choice of forum and jurisdiction

     a. Any dispute arising from these Clauses shall be resolved by the courts in accordance with the Agreement.

     b. 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.

     с. The Parties agree to submit themselves to the jurisdiction of such courts.

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.

ANNEX I

A. LIST OF PARTIES

Data exporter(s):
The Client, in accordance with the relevant PO and Agreement. Activities relevant to the data transferred under these Clauses: submitting personal data to Data importer/Processor by electronic means, without limitation, web interface, API, or other communication channels.
Role (controller/processor): Controller
Data importer(s):
Name: Influ2 Inc
Address: 1250 Borregas Avenue #44 Sunnyvale, CA 94089, USA
Contact person’s name, position, and contact details: Dmitry Gordiyenko, DPO, d.gordiyenko@influ2.com
Activities relevant to the data transferred under these Clauses: running advertising campaigns targeted to specific people according to data provided by Data exporter/Controller.
Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

the audience selected and specified by the Data exporter/Controller, who are subjects to targeted advertising campaigns running by the Data importer/Processor to the benefit and on behalf of the Data exporter/Controller.

Categories of personal data transferred

first and last name, company name, title, business email address, and phone number.

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

Not applicable

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

Episodically, as needed.

Nature of the processing

Collection, recording, organisation, structuring, storage, retrieval, and erasure

Purpose(s) of the data transfer and further processing

Running advertising campaigns targeted to specific people according to data provided by Data exporter/Controller.

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

For the duration of the services agreement between Data exporter/Controller and Data importer/Processor or until deletion is properly requested by the Data exporter/Controller, whichever comes earlier. In any case, data that is not further necessary for the purposes of the services agreement will be deleted within a technically reasonable time that will not exceed thirty (30) days.

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

Running advertising campaigns targeted to specific people on a particular social media platform; retrieval and erasure; the data is transferred in hashed (irreversibly pseudonymized) format and will be deleted promptly after the match process is complete.

C. COMPETENT SUPERVISORY AUTHORITY

In accordance with Clause 13 hereof

ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE the SECURITY OF the DATA

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

Measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including databases, application servers, and related hardware), where Personal Data are processed, including establishing security areas, restriction of access paths; establishing access authorizations for employees and third parties; door locking (electric door openers, etc.).

Measures to prevent data processing systems from being used by unauthorized persons, including user identification and authentication procedures, ID/password security procedures, encryption of archived data media.

Measures to ensure that persons entitled to use a data processing system gain access only to such Personal Data in accordance with their access rights, and that Personal Data cannot be read, copied, modified, or deleted without authorization, including internal policies and procedures, control authorization schemes, differentiated access rights (profiles, roles, transactions, and objects); monitoring and logging of accesses, disciplinary action against employees who access personal data without authorization.

Measures to ensure that Personal Data cannot be read, copied, modified, or deleted without authorization during electronic transmission, transport, or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Personal Data are disclosed, including encryption, logging, transport security. Personal Data is encrypted with the SHA-256 algorithm at rest and is subject to transfer via HTTPS with TLS 1.3 encryption.

Measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems, including logging and reporting systems, audit trails, and documentation.

Measures to ensure that Personal Data is protected against accidental destruction or loss (physical/logical), including backup procedures, uninterruptible power supply (UPS), remote storage, anti-virus/firewall systems, disaster recovery plan.

Measures to ensure that Personal Data collected for different purposes can be processed separately, including separation of databases, limitation of use, segregation of functions (production/testing).

Measures of the annual audit for SOC 2 Type II, including security, availability, and confidentiality controls, as well as annual penetration testing and constant vulnerability monitoring.

ANNEX III – LIST OF SUB-PROCESSORS

EXPLANATORY NOTE:

This Annex must be completed for Modules Two and Three, in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).

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

  1. Name: Facebook, Inc.
    Address: 1 Hacker Way, Menlo Park, CA 94025, USA
    Contact person’s name, position, and contact details: TBD
    Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): matching hashed (irreversibly pseudonymized) personal data with own data collected as a data controller to run advertising campaigns targeted to users of facebook.com or instagram.com websites.

  2. Name: LinkedIn Corp
    Address: 1000 West Maude Avenue Sunnyvale, CA 94085 USA
    Contact person’s name, position, and contact details: TBD
    Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): matching hashed (irreversibly pseudonymized) personal data with own data collected as a data controller to run advertising campaigns targeted to users of the linkedin.com website.

  3. Name: Google LLC
    Address: 1600 Amphitheatre Parkway Mountain View, CA 94043
    Contact person’s name, position, and contact details: TBD
    Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): matching hashed (irreversibly pseudonymized) personal data with own data collected as a data controller to run advertising campaigns targeted to users of the google.com website and related services.

  4. Name: Oath Inc. (Yahoo!)
    Address: 770 Broadway 4th, 5th, 6th, and 9th Floor New York, NY 10003 United States
    Contact person’s name, position, and contact details: TBD
    Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): matching hashed (irreversibly pseudonymized) personal data with own data collected as a data controller to run advertising campaigns targeted to users of the yahoo.com website and related services.