This Data Processing Addendum (“DPA”) is executed upon the date of the last signature (“DPA Effective Date”) by Genemod Corporation (“Genemod”) and the customer identified below (“You” or Customer”) to amend the master subscription agreement governing the use of the Genemod Service by Customer (“Agreement”).
This DPA is incorporated into and subject to the Agreement (and the limitation of liabilities set forth therein shall apply to this DPA) and reflects the parties’ agreement with respect to the processing of personal data within Customer Data under the Agreement. If there is a conflict between this DPA and the Agreement, this DPA shall control. Capitalized terms not otherwise defined shall have the meanings ascribed to them in the Agreement.
To the extent applicable and required by Applicable Data Protection laws, the EEA Standard Contractual Clauses, set forth as Exhibit A, form an integral part of this DPA. Capitalized terms used but not defined in this DPA will have the meaning provided in the Agreement, or, when not defined in the Agreement, the meaning given to them under the GDPR. Except as modified below, the terms of the Agreement shall remain in full force and effect.
1. Definitions
1.1 “Applicable Data Protection Law(s)” means the privacy, data protection, and data security laws and regulations of any jurisdiction applicable to the Processing of Personal Information under the Agreement, including, without limitation, the GDPR, the UK GDPR, and the CCPA. Where a specific reference is made to the GDPR, it shall be understood to be referring to the equivalent requirement under the UK GDPR, mutatis mutandis.
1.2 “CCPA” means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time, including the California Privacy Rights Act of 2020 and any regulations promulgated thereunder.
1.3 “Controller” means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Information; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
1.4 “Data Subject” means an identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural mor social identity of that natural person. In circumstances where the CCPA applies to Customer’s personally identifiable information, the term Data Subject has the same meaning as “consumer” under the CCPA, the term “controller” has the same meaning as “business” under the CCPA, and the term “Processor” has the same meaning as “service provider” under the CCPA.
1.5 “EEA” means the European Economic Area.
1.6 “GDPR” means 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 Information and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.7 “Personal Data” means Customer Data that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Data Protection Laws, or information of a similar character regulated thereby, provided that such data is electronic data and information related to an identified or identifiable natural person and such data is Customer Data.
1.8 “Processing” or “Process” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means.
1.9 “Processor” means a natural or legal person, public authority, agency, or other body which processes Personal Information on behalf of the controller.
1.10 “Restricted Information” means (i) sensitive personal information as defined in Article 9 and 10 of the GDPR and other applicable data protection laws, and (ii) personal health information (meaning health or medical condition of an individual or the provision of health care to an individual).
1.11 “Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Information to third countries pursuant to the GDPR and approved by European Commission Implementing Decision (EU) 2021914 of 4 June 2021, currently located here: https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj.
1.12 “UK GDPR” means the UK Data Protection Act 2018 as supplemented by Schedule 21, the Keeling Schedule.
2. Term
This DPA will take effect on the DPA Effective Date and automatically terminate following the expiry or termination of the Agreement.
3. Information Security Program snd Related Matters
Genemod has implemented an information security program consisting of policies and procedures that define how system information is entered, managed, and protected. Genemod shall monitor, analyze, and respond to security incidents in a timely manner in accordance with Genemod’s standard operating procedure, which sets forth the steps that Genemod employees must take in response to a threat or security incident. Customer shall promptly apply any subscription service upgrade that Genemod determines is necessary to maintain the security, performance, or availability of the subscription service and shall, in general, comply with Genemod’s upgrade policy.
4. Affected Persons/Categories of Data
Users and business partner personnel designated by Customer are affected by the collection, processing, or use of Personal Information. The categories of Personal Data processed hereunder are specified in Annex 1 Appendix A. Unless otherwise agreed by the parties in writing, no Restricted Information shall be processed under the Agreement.
5. Personnel
Genemod will ensure (a) that its personnel with access to Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and (b) that such personnel are adequately instructed in the appropriate handling of Personal Information. Genemod shall implement measures to restrict access to Personal Information as set out in Annex II Appendix A.
6. Audit Rights
Genemod makes available to the Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 GDPR, in particular, by making available compliance reports. In the event Customer wishes to carry out further audit activities, Customer shall provide Genemod and its subprocessors with as much notice as possible if it exercises any of its audit rights under this DPA or, as applicable, according to the Standard Contractual Clauses and shall pay Genemod and its subprocessors reasonable administrative costs and expenses for engaging and complying with any on-site audit, unless such audit shows that Genemod is in material breach with its obligations under this DPA.
7. Sub-Processing
Genemod uses sub-processors listed under https://trust.genemod.net/subprocessors. Customer hereby consents to Genemod engaging new subprocessors subject to Clause 9 of Appendix A and the following terms.
Genemod shall provide Customer with thirty (30) days prior written notice (email being sufficient) of any new sub-processor. Customer shall notify Genemod promptly in writing within thirty (30) days after receipt of such notice, if the Customer has a reasonable basis to object to the use of a new sub-processor. For the avoidance of doubt, the Customer hereby acknowledges that the use of a new sub-processor shall be deemed acceptable if Genemod has procured: (i) the same level of protection of Personal Data by imposing the same obligations as set out in this DPA on each new sub-processor by way of a written contract; and (ii) that the relevant sub-processor will implement and use appropriate technical and organizational measures which meet the requirements of Applicable Data Protection Laws. Notwithstanding the foregoing, if Customer reasonably objects to the appointment of another sub-processor, the parties will come together in good faith to discuss an appropriate solution. Genemod may, in particular, choose: (a) not to use the intended sub-processor or (b) take corrective steps and/or measures reasonably requested by the Customer and engage the sub-processor. If the parties, acting in good faith, cannot agree to an appropriate solution, Customer may, in its sole discretion, terminate the Agreement.
8. Processing of Customer Data
Genemod will comply with the terms and conditions set forth in this DPA in its collection, receipt, transmission, storage, disposal, use, and disclosure of Personal Data and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use, and disclosure of Personal Data under its control or in its possession. Genemod will comply with all applicable federal and state privacy and data protection laws and regulations.
With respect to Personal Data within Customer Data under this DPA, the parties agree that Customer is the Controller and Genemod is a Processor. Customer will comply with its obligations as a Controller, and Genemod will comply with its obligations as a Processor under the Agreement and this DPA. Genemod will only Process Customer Data in fulfilling its obligations under the Agreement, such as, without limitation, providing and supporting Customer’s usage of the subscription service, detecting, and addressing security and technical issues, and responding to support requests. The Processing of Customer Data only takes place within the framework of the Agreement and according to the instructions of Customer. In particular, the collected, processed, or used data may only be corrected, deleted, or blocked on instructions of Customer. Backup copies are created, if they are necessary to ensure proper data processing, or reproduction processes that are necessary in order to ensure compliance with regulatory retention requirements. All instructions must be issued in writing. Genemod shall immediately inform the Customer if, in Genemod’s opinion, an instruction violates the GDPR or other applicable data protection regulations.
9. Data Subject Access Requests
Genemod will provide reasonable assistance to Customer in the fulfillment of Customer’s obligation to respond to Data Subject requests, referred to in Chapter 3 (Rights of the Data Subject) of the GDPR, for Personal Information stored and used to provide the Genemod Service. If a Data Subject raises a request directly with Genemod, Genemod will promptly pass this request to Customer.
10. Assistance, Reporting, and Impact Assessments
Genemod will provide reasonable assistance to Customer in complying with the obligations concerning the security of Personal Information, reporting requirements for data breaches, data protection impact assessments, and prior consultations, referred to in Articles 32 to 36 of Regulation (EU) 2016/679.
11. Breach Notification
Genemod shall report to Customer’s support contacts designated in Genemod’s customer support portal the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information within Customer Data (“ Breach ”) within twenty-four (24) hours, after Genemod determines, or reasonably suspects, that a Breach has occurred, unless restricted by law. Accordingly, Genemod shall share information about the nature and consequences of the Breach that is reasonably requested by Customer to enable it to notify affected individuals, government agencies, and/or credit bureaus. Customer has sole control over the content of Customer Data that it enters into the subscription service and is solely responsible for determining whether to notify impacted Data Subjects and the applicable regulatory bodies or enforcement commissions and for providing such notice. Customer shall ensure that the support contacts designated in Genemod’s customer support portal be current and ready to receive any breach notification from Genemod.
12. Return and Deletion of Customer Data
The return and deletion of Customer Data after the termination of the Agreement shall be in accordance with Annex II Appendix A.
13. International Data Transfers
13.1 Lawful Transfers. As part of providing the Genemod Service, Genemod may transfer Personal Data to a jurisdiction different from the hosting region as necessary for the purposes of complying with its obligations under the Agreement. The transfer of Personal Data regulated by the GDPR to a jurisdiction outside the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, shall be governed by the Standard Contractual Clauses, attached to this DPA to enable the lawful transfer of Personal Data.
In the event that, for any reason whatsoever, the Standard Contractual Clauses no longer constitute an adequate safeguard, the parties shall, acting reasonably, promptly negotiate in good faith an alternative lawful method to facilitate such transfers of Customer Data, taking into consideration what other similarly situated business partners have done in respect of such issue.
In case the EU Commission adopts a new set of standard data protection clauses for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of data protection (Chapter V GDPR), the parties shall mutually agree on the incorporation of the new set of standard data protection clauses upon request.
13.2 “Schrems II” Clause. . Genemod shall promptly notify the Customer if it: (i) receives a legally binding request by a public authority under the laws of the country of destination for disclosure of Personal Data transferred pursuant to this DPA; 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 Information transferred pursuant to this DPA in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
If Genemod is prohibited from notifying the Customer, Genemod agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. Genemod agrees to document its best efforts in order to be able to demonstrate them upon request of the Customer.
To the extent permissible under the laws of the country of destination, Genemod agrees to provide or make available to the Customer, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received in relation to this DPA (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.).
Appendix A EEA Standard Contractual Clauses (Processors)
Section I
Clause 1 Purpose and Scope
The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Information and on the free movement of such data (General Data Protection Regulation) for the transfer of Personal Data to a third country.
The Parties:
the natural or legal 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
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”).
These Clauses apply with respect to the transfer of Personal Data as specified in Annex I.B.
The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2 Effect and Invariability of the Clauses
These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, 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.
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
Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following
Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
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);
Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
Clause 13;
Clause 15.1(c), (d) and (e);
Clause 16(e);
Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4 Interpretation
Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
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
- not used -
Section II - Obligations of the Parties
Clause 8 Data Protection Safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
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.
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 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
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.
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.
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.
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:
the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and Compliance
The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
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.
The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9 Use of Sub-processors
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.
Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.3 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
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.
The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10 Data subject rights
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.
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.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11 Redress
The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
refer the dispute to the competent courts within the meaning of Clause 18.
The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12 Liability
Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13 Supervision
[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.
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
The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). 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
The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of Legality and Data Minimisation
The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
The data 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
The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of Personal Data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
the data importer is in substantial or persistent breach of these Clauses; or
the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses. In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
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 Luxembourg.
Clause 18 Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
The Parties agree that those shall be the courts of Luxembourg ( specify Member State).
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.
The Parties agree to submit themselves to the jurisdiction of such courts.
Annex I 1 to Appendix A
ANNEX I
A. List of Parties
Data exporter(s): Customer and its Affiliates who are using the Genemod Service (see signature section for further details).
Data importer(s): Genemod Corporation (See signature section for further details).
B. Description of Transfer
Categories of data subjects whose personal data is transferred
Categories of data subjects will include data exporter’s Users and personnel of data exporter’s (potential) business partners.
Categories of personal data transferred
Data exporter’s User data:
Email address
First name and last name
Optional: nick name, picture, employee ID, phone and/or fax number, legal entity, and cost center
Data exporter’s (potential) business partner contact data:
Contact email address
Contact first and last name
Optional: phone and/or fax number
Such other Personal Data as the data exporter may configure the Genemod Service to collect and to process
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.
No sensitive data will be transferred by the data exporter.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Data will be transferred on a continuous basis.
Nature of the processing/ purpose(s) of the data transfer and further processing
For the provision of the services to the data exporter.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
For as long as the processor is providing the Genemod Services to the controller under the Master Subscription Agreement and additional time as required by processor’s data backup obligations and backup deletion processes.
For transfers to (sub-)processors, also specify subject matter, nature and duration of the processing
In the scope of providing the services to controller under the Master Subscription Agreement, including technical support, processor and its sub-processors may need access to or process the Personal Data in order to provide the services.
C. Competent Supervisory Authority
See signature section for further details.
Annex II - Technical and Organisational Measures Including Technical and Organisational Measures to Ensure the Security of the Data
U.S. Privacy Annex
This U.S. Privacy Annex to the existing Master Subscription Agreement (or similarly titled agreement) addresses provisions related to U.S. privacy, security, breach notification, or other data protection laws applicable to Personal Information (defined below), including, as applicable, the California Consumer Privacy Act (“ CCPA ”), as amended by the California Privacy Rights Act (“ CPRA ”), and regulations promulgated pursuant to such laws.
Definitions. For purposes of this Annex only: (i) “Personal Information” means any information within Customer Data that Genemod Processes to allow Customer to access and use the Genemod Service relating, directly or indirectly, to any identified or identifiable natural person or household, including but not limited to information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household. Without limiting the generality of the foregoing, “Personal Information” includes “personal information,” “personal data,” and like terms as defined under Applicable Data Protection Laws; (ii) “Process” or “Processing” means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means; (iii) “Applicable Law” means any U.S. privacy, security, breach notification, or other data protection laws applicable to Personal Information, including, as applicable, the California Consumer Privacy Act (“CCPA ”), as amended by the California Privacy Rights Act (“ CPRA ”), and regulations promulgated pursuant to such laws. Capitalized terms not otherwise defined in the MSA shall have the meaning provided under Applicable Law.
To the extent that Genemod collects or Processes Personal Information within Customer Data in connection with performing functions on behalf of Customer specified in the Agreement and further to the extent applicable and required by Applicable Law, Genemod agrees as follows:
Genemod shall use, disclose, or otherwise Process the Personal Information only to perform functions under the Agreement or as otherwise required by law or agreed to in writing by Customer. Without limiting the generality of the foregoing, and subject to the terms and conditions herein, Genemod agrees it shall not: (i) Sell or Share the Personal Information; (ii) retain, use, or disclose the Personal Information for any purpose other than for the specific purpose of performing functions under the Agreement, including retaining, using, or disclosing the Personal Information for a commercial purpose other than performing functions under the Agreement or retaining the Personal Information other than in connection with functions described in the Agreement; (iii) retain, use, or disclose the Personal Information outside of the direct business relationship between Genemod and Customer; or (iv) on or after January 1, 2023, combine the Personal Information with Personal Information it receives from another source except as permitted by Applicable Law. Notwithstanding the foregoing, Customer agrees that Genemod may, if otherwise permitted by Applicable Law and subject to Genemod’s confidentiality obligations hereunder, Process Personal Information as permitted under Applicable Law, retain Personal Information to the extent required by Applicable Law, and perform other Processing functions as permitted under Applicable Law. Genemod hereby certifies that it understands the restrictions set forth in this section and will comply with them. The parties acknowledge and agree that (x) the subject matter, nature, and purposes of Processing of the Personal Information is Genemod’s performance of functions specified in the Agreement; and (y) the duration of Processing of the Personal Information by Genemod is set forth in Genemod’s Privacy Policy.
Genemod shall comply with Applicable Law and reasonably assist Customer to comply with Applicable Laws, including but not limited to providing reasonable assistance honoring individual rights requests as necessary for Customer to comply with Applicable Laws. If Genemod receives requests relating to Personal Information directly from an individual in connection with the Agreement, Genemod shall inform the individual that Genemod cannot respond to the request because it is a Service Provider or Processor.
Genemod shall engage a qualified, independent assessor at Genemod’s expense as described in the section labeled “Audit Report” of the Agreement. Customer acknowledges that this provision satisfies audit or assessment requirements under Applicable Laws.
Genemod shall maintain reasonable security measures to protect Personal Information in accordance with the Agreement, including providing at least the same level of privacy protection as is required by Applicable Laws and ensuring each person Processing the Personal Information is subject to a duty of confidentiality with respect to such Personal Information. If Genemod directly causes a breach of Personal Information that requires notification under Applicable Law, Genemod shall provide reasonable assistance to Customer as necessary for Customer to comply with Applicable Law.
The parties do not intend for Genemod to Process Personal Information in a manner that presents a heightened risk of harm to consumers or that otherwise requires Customer to conduct a data protection assessment under Applicable Law (“High Risk Processing”). To the extent that Customer provides advanced written notice to Genemod that Genemod’s performance of functions under the Agreement may involve High Risk Processing, and Genemod agrees to perform such High Risk Processing, Genemod agrees to provide necessary information to enable Customer to conduct and document data protection assessments that are required by Applicable Law.
Customer approves of Genemod’s use of the subprocessors listed at: https://trust.genemod.net/subprocessors. Genemod shall provide notice of updates to such list by updating the link and Customer shall be responsible for periodically monitoring such list. If Customer notifies Genemod of any objections (on reasonable grounds) within 30 days of the list being updated, Genemod shall not affect the subprocessor update until reasonable steps have been taken to address the objections raised by Customer.
If Genemod can no longer meet its obligations under Applicable Law, it shall provide Customer notice thereof.
