Standard Metrics EU / UK Data Processing Addendum
To the extent Standard Metrics, Inc. (“Company”) processes personal data of an individual located in the UK or EU on behalf of a legal person customer (“Customer”) under the Standard Metrics SaaS Subscription Agreement or Standard Metrics Terms of Service (each agreement, as applicable, described here as “the Agreement”), this Standard Metrics EU / UK Data Processing Addendum (“DPA”) is incorporated into the Agreement and binding on the parties.. Any terms capitalised but not defined in this DPA shall have the meaning set forth in the Agreement.
1.1. “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
1.2. “Authorized Sub-Processor” means the third-party natural or legal person, public authority, agency or other body which processes Customer’s Personal Data as a processor on behalf of the Company to enable the Company to perform its obligations under this DPA or the Agreement, and who is either (1) listed in Exhibit B or (2) subsequently authorized under Section 4.2 of this DPA.
1.3. “Customer Account Data” means personal data that relates to Company’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s account and billing information of individuals that Customer has associated with its account. Customer Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.
1.4. “Customer Usage Data” means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
1.5. “Data Exporter” means Customer.
1.6. “Data Importer” means Company.
1.7. “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”), (ii) the Privacy and Electronic Communications Directive 2002/58/EC; (iii) the UK Data Protection Act 2018, the UK General Data Protection Regulation as defined by the UK Data Protection Act 2018 as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (together with the UK Data Protection Act 2018, the “UK GDPR”) (the EU GDPR and UK GDPR, collectively the “GDPR”), (iv) the Swiss Federal Act on Data Protection, ; and (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003; in each case, as updated, amended or replaced from time to time. The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR.
1.8. “EEA” means the European Economic Area.
1.9. “EU SCCs” means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time), as incorporated by Section 6.2 of this DPA.
1.10. “ex-EEA Transfer” means the transfer of Personal Data, which is processed subject to the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic
Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR.
1.11. “ex-UK Transfer” means the transfer of Personal Data covered by Chapter V of the UK GDPR, which is processed subject to the UK GDPR and the UK Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the UK Data Protection Act 2018.
1.12. “Services” shall have the meaning set forth in the Agreement.
1.13. “Standard Contractual Clauses” means the EU SCCs and the UK Addendum.
1.14. “UK Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B.1.0) issued by the UK Information Commissioner, in each case as amended, updated or replaced from time to time, and incorporated herein as Exhibit D of this DPA.
2. Relationship of the Parties; Processing of Data
2.1. The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in Section 9 of this DPA or the Agreement, Company is a processor, and this Section sets forth Company’s instructions for processing Personal Data as processor on behalf of Customer.
2.2. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Company to be in breach of the Data Protection Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith.
2.3. Company shall not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this DPA or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by a supervisory authority to which the Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws. Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.
2.4. The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA.
2.5. Following completion of the Services, at Customer’s choice, Company shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer’s request.
3.1. Company shall, in processing Personal Data as processor on behalf of Customer, (i) hold all Personal Data of Customer which it obtains in relation to this DPA, in strict confidence, and (ii) ensure that employees, agents, officers, consultants, sub-processors, subcontractors, and advisers authorised to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.
3.2. The obligation in Section 3.1 will not apply to a disclosure of Personal Data that is required by any law or regulation of any country with jurisdiction over the affairs of Company or required by any order of any court of competent jurisdiction.
4. Authorized Sub-Processors
4.1. Customer acknowledges and agrees that Company may (1) engage its Affiliates as well as the Authorized Sub-Processors on the List (defined below) to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data. By way of this DPA, Customer provides general written authorization to Company to engage sub-processors as necessary to perform the Services.
4.2. A list of Company’s current Authorized Sub-Processors (the “List”) is available to Customer at https://www.standardmetrics.io/subprocessors. Such List may be updated by Company from time to time and Company will subscribe Customers to receive notifications (which may include but are not limited to email notifications) of new Authorized Sub-Processors.. At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will add such third party to the List and notify subscribers, including Customer, via the aforementioned notifications. Customer may object to such an engagement by informing Company in writing within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable and documented grounds related to the confidentiality or security of Personal Data or the sub-processor’s compliance with Data Protection Laws. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.
4.3. If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company. Discontinuation shall not relieve Customer of any fees owed to Company under the Agreement.
4.4. If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.
4.5. Company will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations that are not less onerous than those imposed on Company under this DPA with respect to the processing of Personal Data as processor. In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.
4.6. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Company of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Company to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.
5. Security of Personal Data.
5.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Company’s technical and organizational security measures.
6. Transfers of Personal Data
6.1. The parties agree that Company may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data processed subject to the GDPR to a jurisdiction for which the European Commission or the competent UK authority have not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
6.2. Ex-EEA Transfers. To the extent that Company processes Personal Data in a country outside of the scope of the data protection laws of the EEA, excluding countries approved as providing adequate protection for Personal Data by the European Commission from time to time, Company agrees to comply with the data importer’s obligations and Customer agrees to comply with the data exporter’s obligations set out in the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:
6.2.1. Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.
6.2.2. Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor pursuant to Section 2 of this DPA.
6.3. For each module, where applicable the following applies:
6.3.1. The optional docking clause in Clause 7 does not apply.
6.3.2. In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be as set forth in Section 4.2 of this DPA;
6.3.3. In Clause 11, the optional language does not apply;
6.3.4. All square brackets in Clause 13 are hereby removed;
6.3.5. In Clause 17 (Option 1), the EU SCCs will be governed by Irish law.
6.3.6. In Clause 18(b), disputes will be resolved before the courts of Ireland;
6.3.7. Exhibit B to this DPA contains the information required in Annex I and Annex III of the EU SCCs;
6.3.8. Exhibit C to this DPA contains the information required in Annex II of the EU SCCs; and
6.3.9. By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.
6.4. Ex-UK Transfers. To the extent that Company processes Personal Data in a country outside of the scope of the data protection laws of the UK, excluding countries approved as providing adequate protection for Personal Data by the relevant competent authority of the UK from time to time, Company agrees to comply with the data importer’s obligations and Customer agrees to comply with the data exporter’s obligations set out in the UK Addendum, which are deemed entered into and incorporated herein as Exhibit D of this DPA.
6.5. Transfers from Switzerland. The parties agree that transfers from Switzerland are made pursuant to the EU SCCs with the following modifications:
6.5.1. The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised as of 25 September 2020, the “Revised FADP”) with respect to data transfers subject to the FADP.
6.5.2. The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP.
6.5.3. Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (“FDPIC”) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Section 13 shall be observed.
6.5.4. The term “EU Member State” as utilized in the EU SCCs shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs.
6.6. Supplementary Measures. In respect of any ex-EEA Transfer or ex-UK Transfer, the following supplementary measures shall apply:
6.6.1. As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer’s Personal Data (“Government Agency Requests”);
6.6.2. If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Company shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the government agency. If compelled to disclose Customer’s Personal Data to a law enforcement or government agency, Company shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so. Company shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in light of such Government Agency Requests; and
6.6.3. The Data Exporter and Data Importer will collaborate as needed to consider whether:
(i) the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;
(ii) additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and
(iii) it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities.
6.6.4. If Data Protection Laws require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws.
6.6.5. If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws.
7. Rights of Data Subjects
7.1. Company shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right under Data Protection Laws, including rights of access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Company receives a Data Subject Request in relation to Customer’s data, Company will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Company, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.
7.2. Company shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Company’s assistance and (ii) Company is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
8. Actions and Access Requests; Audits
8.1. Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer would reasonably not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
8.2. Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any supervisory authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
8.3. Company shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA, and retain such records for a period of three (3) years after the termination of the Agreement. Customer shall, with reasonable notice to Company, have the right to review, audit and copy such records at Company’s offices during regular business hours.
8.4. Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Company’s data security infrastructure and procedures that is sufficient to demonstrate Company’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Company’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to Personal Data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Company for any time expended for on-site audits. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 8.9 of the EU SCCs (as applicable) shall be carried out in accordance with this Section 8.4.
8.5. Company shall immediately notify Customer if an instruction, in the Company’s opinion, infringes Data Protection Laws.
8.6. In the event of a Personal Data Breach, Company shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Company in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Company’s reasonable control).
8.7. In the event of a Personal Data Breach, Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying without undue delay (i) the relevant supervisory authority and (ii) Data Subjects affected by such Personal Data Breach, as may be applicable.
10. Conflict. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this DPA; (3) the Agreement. Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.
Details of Processing
Subject Matter, Nature and Purpose of Processing: Company will process Customer’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA. The nature of processing includes, without limitation:
- Receiving data, including collection, accessing, retrieval, recording, and data entry
- Protecting data, including restricting, encrypting, and security testing
- Holding data, including storage, organization, and structuring
- Erasing data, including destruction and deletion
- Analyzing data, including product usage assessment and monitoring and analyzing the Service’s usage and trends and otherwise measure the effectiveness of the Services
- Sharing data, including disclosure to subprocessors as permitted in this DPA
- Using data to communicate about accounts or transactions and sending details or updates about features of the Services or changes to policies
- Using data to personalize content and experiences and optimizing or improving the content, products, services, and features of the Services
Duration of Processing: Company will process Customer’s Personal Data as long as required (i) to provide the Services to Customer under the Agreement; or (iii) by applicable law or regulation.
Categories of Data Subjects: representatives of Customer’s clients, end users of Customer, consultants, contractors, and/or agents.
Categories of Personal Data: Company processes Personal Data provided by Customer (including any Personal Data Customer collects from its end users and processes through its use of the Services) or collected by Company in order to provide the Services or as otherwise set forth in the Agreement or this DPA. Categories of Personal Data include name, email, job title, username, Company device identifiers (e.g. serial number), IP address for company device, installed applications for company device, background check verification records (at discretion of Controller), security training records.
Sensitive Data or Special Categories of Data: Company does not process special categories of personal data under this DPA.